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 .
Status of the Claims
Claims 1-13 are pending and rejected. Claims 14-16 are withdrawn.
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-13 in the reply filed on 4/30/2026 is acknowledged. The traversal is on the ground(s) that the office has confused the concept of unity of invention with obviousness and that there is no serious search burden. This is not found persuasive because as discussed below, the shared technical feature is considered to be suggested by the combination of prior art discussed in the rejection below. As to the search burden, it is noted that the demonstration that the shared technical feature is suggested by the prior art is sufficient for the restriction, whereas, in the US Restriction practice a search burden must be demonstrated.
The requirement is still deemed proper and is therefore made FINAL.
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.
Claims 1-4, 7-8, and 10-13 are rejected under 35 U.S.C. 103 as being unpatentable over Yu, CN 109868970 A (provided on the PTO-892 of 3/2/2026) in view of Schaepers, US 2020/0277236 A1.
The following citations for Yu, CN 109868970 A are in reference to the machine translation provided on the PTO-892 of 3/2/2026 and the figures in the original document.
Regarding claims 1-4, Yu teaches method for producing a floor construction on a substrate (a process for flooring production on a base substrate, pg. 1), comprising the following steps:
b) applying the screeding compound to the substrate (applying a crack-resistant screed or leveling mortar layer to the primed base layer, pg. 1-2),
c) drying the screeding compound to form a dried screed (air-drying the crack-resistant screed/leveling layer so as to provide a solidified or dried layer, pg. 2), and
d) applying a seal to the dried screed by
d2) applying a fluid or pasty sealing material to the dried screed, with the sealing material solidifying to form the seal (applying a putty sealing layer on the screed layer, pg. 2 and Fig. 1, where since the process is in forming a flooring, the seal is expected to dry for forming a solid flooring), and
e) optionally applying a floorcovering to the seal (applying a wear-resistant cover layer, pg. 1-2).
They do not teach the composition of the screed.
Schaepers teaches a binder composition that includes cement, calcium sulfate, at least one zinc salt, and at least one alkylamine, and a dry-mortar mixture that includes the binder composition (abstract). They teach that the binder composition includes i) 0.1% to 00.0% by weight of Portland cement, ii) 0.1% to 99.9% by weight of alumina cement, iii) 0.1 to 99.0% by weight of calcium sulfate, iv) 0.01% to 10.0% by weight of at least one zinc salt, and v) 0.01% to 10.0% by weight of at least one alkylamine, based on the total weight of the binder composition (0010-0015). They teach a dry-mortar mixture that includes the binder of the invention and at least one filler such as quartz sand or calcite (0030-0032). They teach that binders refer to include hydraulic binders such as cement and non-hydraulic binders such as gypsum (0036). They teach that cement refers to categories CEM I-V, calcium aluminate cements, calcium sulfoaluminate cements, and mixtures thereof (0037). They teach that calcium aluminate cements comprise minerals of the formula CaO.Al2O3 and comprise about 20 to 40% by weight of CaO, up to 5% by weight of SiO2, about 40 to 80% by weight of Al2O3, and up to about 20% by weight of Fe2O3 (0039). They teach that calcium sulfoaluminate cements may be produced from tricalcium aluminate, anhydride, calcium sulfate hemihydrate, and/or gypsum (0040). From this, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention that the alumina binders are selected from calcium aluminate cements and calcium sulfoaluminate cements because they describe calcium aluminate cements and calcium sulfoaluminate cements as materials including alumina, where they are indicated as being suitable cements for the process. They teach that the weight ratio of Portland cement and alumina cement is in the range of from 90:10 to 10:90 (0045). They teach that calcium sulfate refers to the compounds calcium sulfate dihydrate, calcium sulfate hemihydrate, and calcium sulfate anhydrite (0048). They teach that the article (mortar) comprises 5.0 to 100.0% by weight, more preferably 15 to 85% by weight, particularly preferably 25 to 75% by weight of the binder composition, based on the total weight of the article (0106-0107). They teach that the dry-mortar mixture preferably comprises the binder composition and the at least one filler in a weight ratio from 1:99 to 99:1, more preferably from 15:85 to 85:15, particularly preferably from 25:75 to 75:23 (0111). They teach that the dry-mortar mixture comprises preferably 1 to 99% by weight, 15-85% by weight, 25-75% by weight, 40-70% by weight of the binder composition and 1-99% by weight, 15-85%, 25-75%, or 30-50% by weight of the fillers based on the total weight of the dry-mortar mixture (0112). They teach that the dry-mortar mixture is used by mixing with water (0115). They teach that the binder composition provides high early strengths at high and low temperatures (0006). Therefore, they provide a dry mortar composition that includes an aluminate binder selected from calcium aluminate cement and/or calcium sulfoaluminate cement (alumina cements), a calcium sulfate binder selected from a group including calcium sulfate hemihydrate and/or calcium sulfate anhydrite, and one or more fillers, where the composition includes the materials in weight percentages and ratios overlapping the claimed ranges. Further, the ratio of aluminate binder to calcium sulfate binder overlaps the claimed range, where the alumina (aluminate) binder is provided in the range of 0.1 to 99.9% by weight and the calcium sulfate is provided in the range of 0.1 to 99% by weight.
From the teachings of Schaepers, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the process of Yu to have used the dry-mortar composition of Schaepers as the screed mortar composition and to have mixed it will water because Yu teaches using a mortar layer and Schaepers provides a high strength mortar composition such that it will be expected to be crack free so as to provide a desirable mortar for the screed layer. Therefore, Yu in view of Schaepers provides the process of claim 1 using a screed or mortar composition meeting the claimed materials and having them in overlapping ranges. According to 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.”
Further, according to MPEP 2144.05 II A, “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). Therefore, the teachings of Yu in view of Schaepers are considered to render the claimed ranges obvious in the absence of a showing that the ranges are critical.
Regarding claim 7, Yu in view of Schaepers suggest the process of claim 1. Schaepers further teaches including a lithium salt and tartaric acid in the dry mortar composition (0087, 0124-0125).
Regarding claim 8, Yu in view of Schaepers suggest the process of claim 1. Yu further teaches that the base layer is concrete (pg. 1).
Regarding claim 10, Yu in view of Schaepers suggest the process of claim 1. While they do not teach that the drying time of the screed is substantially independent on the layer thickness of the screed, since they provide the composition of claim 1 using overlapping amounts, the composition is also expected to result in drying times that overlap a range in which they are substantially independent of the layer thickness. According to MPEP 2112.01 I, “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)”.
Regarding claim 11, Yu in view of Schaepers suggest the process of claim 1. Schaepers teaches that the setting time of the binder composition may be prolonged/shortened by the addition of certain compounds known as retarders/accelerators, where examples of accelerators include alkali metal carbonates, CaCl2, etc. (0087). They teach that the compressive strength of the dry-mortar mixtures have high early strengths at room temperature and at lower temperatures, whereas the reference mixture does not harden adequately (0173). They indicate that the compressive strength after 4 hours and 24 hours is similar to the inventive examples of the instant invention (Tables 2 and 3 and Table 7 of the instant specification). Therefore, the composition of Schaepers in view of Mapei are expected to also dry within 24 hours because at times of 4 hours and 24 hours, the compositions have a compressive stress similar to the examples of the instant invention and because the composition has the claimed components in overlapping ranges.
Alternatively, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have optimized the drying times by including an accelerator so as to improve the drying time and the efficiency for finishing the flooring because Mapei indicates that the screed must be dry before applying the flooring and Schaepers teaches that accelerators are included for shortening the setting time such that it will be expected to improve the efficiency of the process. According to MPEP 2144.05 II A, “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).
Regarding claim 12, Yu in view of Schaepers suggest the process of claim 1. Yu further teaches that the putty sealing layer is made by mixing high-quality fine sand cement, hydrated lime, and water (0012), such that the fluid or pasty sealing material is understood to be a slurried sealant.
Regarding claim 13, Yu in view of Schaepers suggest the process of claim 1. Yu further teaches applying an artistic resin base color effect layer, a transparent artistic resin layer, and a wear-resistant topcoat layer (0009), such that the floorcovering is considered to include a plastic-based flooring.
Claims 1-4 and 7-13 are rejected under 35 U.S.C. 103 as being unpatentable over Schaepers, US 2020/0277236 A1 in view of Mapei, “Installation of Heated Screeds and Substrates for Laying Floors”, 2013 and for claim 13 as further evidenced by Mapei, “Waterproofing Baths and Swimming Pools”, 2014.
Regarding claims 1-4 and 8, as discussed above, Schaepers suggests a screed or mortar composition having the required materials in overlapping amounts. They teach that mortar is used as a leveling layer on concrete floors (0002). According to 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.”
Further, according to MPEP 2144.05 II A, “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). Therefore, the teachings of Schaepers are considered to render the claimed ranges obvious in the absence of a showing that the ranges are critical.
They do not teach producing a floor construction using the claimed method.
Mapei teaches that a screed is a construction element laid in a range of thicknesses, and its purpose is to bring the installation surface for the flooring to the design height and to provide a surface suitable for installing the specified flooring (pg. 3, section 2). Thy teach that screeds are usually made from pre-blended mortar mixed with cementitious binders or anhydrite-based binders (pg. 3, section 2). They teach that before installing any type of flooring the screed must be cured and crack free (pg. 4-5, section 3). They teach that before installing flooring, all cracks must be monolithically sealed by filling them with epoxy resin (pg. 5, section 3). They teach that the screed must be dried and have a residual humidity of less than 0.5%, 2% or 2.5-3% depending on the flooring and screed (pg. 5, section 3). They teach unbonded screed is formed by laying a separation layer between the screed and the substrate, where the substrate may be a reinforced concrete capping layer (pg. 7, section 4.1). They teach that a floating screed is applied over a layer of thermal insulating material (pg. 8, section 4.2). They provide an example of a floating screed that includes a concrete substrate, an insulating panel, a polyethylene sheet, the screed, a cementitious waterproofer, a glass fiber mesh, another cementitious waterproofer, adhesive, and a polyethylene sheet (Fig. 4.3.1). They teach another example of a floating soundproof screed having a concrete substrate, a soundproofing membrane, a damp proofing membrane, the screed, and resin flooring (Fig. 4.4). They teach that in bonded screed, the screed bonds to the underlying slab (pg. 11, section 4.3). They provide an example of a bonded screed having a concrete substrate, a bonding slurry, the screed, a waterproofer, an adhesive, and ceramic tiles (Fig. 4.5). They provide an example of a heated screed with both hot and cold water flowing through heating elements having a concrete substrate, a soundproofing membrane, a damp proofing membrane, insulating tape, a heated flooring system, the screed, an adhesive, and wood flooring (Fig. 4.8). They teach sealing the cracks in the screed using an epoxy resin, where fine sand is sprinkled on the resin while it is still fresh and any excess sand which is not anchored in the resin is removed when the resin has dried (pg. 28, section 8), indicating that the cracks are sealed with a fluid epoxy since it must dry and because it is pictures as a fluid (Fig. 8.3).
From the teachings of Mapei, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the process of Schaepers to have used the mortar composition as a screed in flooring construction by applying the mortar/screed mixed with water to a concrete substrate, dried the screeding compound/mortar layer, applied a seal to any cracks by using a fluid epoxy mixture, dried (solidified) the sealing material to form the seal of the cracks, and then to have applied any desired floor coverings (tile, plastic, etc.) because Schaepers teaches that such compositions are used as leveling layers on concrete flooring and Mapei teaches that screed are formed of pre-blended mortar mixed with cementitious or anhydrite-base binders that are applied to concrete substrates and that plastic (polyethylene or resin) or ceramic tiles are applied onto the surface for floor coverings, where cracks in the screed are sealed with epoxy resin such that it will be expected to provide a desirable use for the mortar composition of Schaepers. Therefore, the screed composition will be mixed with water, applied to a concrete substrate, dried, a fluid sealing material will be applied and dried (solidified) to seal any cracks, and a floor covering will be applied.
Regarding claim 7, Schaepers in view of Mapei suggest the process of claim 1. Schaepers further teaches including a lithium salt and tartaric acid in the dry mortar composition (0087, 0124-0125).
Regarding claim 9, Schaepers in view of Mapei suggest the process of claim 1. Mapei further teaches that the thickness of the screed depends on the type of screed to be laid (pg. 4, section 3). They teach that unbonded screed should have a thickness of at least 35 mm (pg. 7, section 4.1). They teach that the minimum thickness of floating screed sis dependent on the material used to make the screed and the mechanical stresses (pg. 9, section 4.3). They provide examples of screed thickness for floating screeds of 4 and 5 cm (Table 1).
From this, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have formed the screed to have a thickness of at least 35 mm, or 4cm, or 5 cm, or optimized to be within the claimed range because Mapei teaches that such thickness are desirable for varying screed types, where the thickness depends on the type of screed and the mechanical stresses such that optimizing the thickness to be within the claimed range is expected to provide a desirable thickness for the screed in the flooring. Therefore, the thickness will be within, overlapping, or optimized to be within the claimed range. According to MPEP 2131.03, “[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art.” According to 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.” According to MPEP 2144.05 II A, “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).
Regarding claim 10, Schaepers in view of Mapei suggest the process of claim 1. While they do not teach that the drying time of the screed is substantially independent on the layer thickness of the screed, since they provide the composition of claim 1 using overlapping amounts, the composition is also expected to result in drying times that overlap a range in which they are substantially independent of the layer thickness. According to MPEP 2112.01 I, “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)”.
Regarding claim 11, Schaepers in view of Mapei suggest the process of claim 1. Schaepers teaches that the setting time of the binder composition may be prolonged/shortened by the addition of certain compounds known as retarders/accelerators, where examples of accelerators include alkali metal carbonates, CaCl2, etc. (0087). They teach that the compressive strength of the dry-mortar mixtures have high early strengths at room temperature and at lower temperatures, whereas the reference mixture does not harden adequately (0173). They indicate that the compressive strength after 4 hours and 24 hours is similar to the inventive examples of the instant invention (Tables 2 and 3 and Table 7 of the instant specification). Therefore, the composition of Schaepers in view of Mapei are expected to also dry within 24 hours because at times of 4 hours and 24 hours, the compositions have a compressive stress similar to the examples of the instant invention and because the composition has the claimed components in overlapping ranges.
Alternatively, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have optimized the drying times by including an accelerator so as to improve the drying time and the efficiency for finishing the flooring because Mapei indicates that the screed must be dry before applying the flooring and Schaepers teaches that accelerators are included for shortening the setting time such that it will be expected to improve the efficiency of the process.
Regarding claim 12, Schaepers in view of Mapei suggest the process of claim 1. Mapei further teaches that the sealing with an epoxy resin such as EPORIP which is dried (pg. 28, section 8). As evidenced by Mapei 2014, EPORIP is a two-component solvent-free epoxy adhesive (pg. 18, section 4.3). Therefore, the fluid sealing material is understood to be a reactive resin because it is a two-component epoxy, indicating that the two components will react when mixed so as to provide the epoxy adhesive.
Regarding claim 13, Schaepers in view of Mapei suggest the process of claim 1. Mapei teaches using various floor coverings over screeds, such as a polyethylene sheet (Fig. 4.3.1), terracotta tiles (Fig. 4.3.2), resin flooring (Fig. 4.4.), ceramic tiles (Fig. 4.5), wood flooring (Fig. 4.8), and porcelain tiles (Fig. 4.1 and Fig. 4.12). From this, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have selected a floorcovering such as tile or a plastic-based flooring because Mapei indicates that such flooring types are desirably placed over screeds.
Claims 5 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Yu in view of Schaepers or Schaepers in view of Mapei as applied to claim 1 above, and further in view of Juilland, WO 2020/109186 A1.
Regarding claim 5, Yu in view of Schaepers or Schaepers in view of Mapei suggest the process of claim 1. Schaepers further teaches that the setting time of the binder composition may be prolonged/shortened by the addition of certain compounds known as retarders/accelerators (0087). They teach that retarders include citric acid, tartaric acid, etc. and accelerators include alkali metal carbonates, CaCl2, Ca(OH)2, etc. (0087).
They do not teach including a polyol.
Juilland teaches a combination of set retarder and regulators for the hydration reaction of cementitious binders comprising clinkers based on Ye’elimite (abstract). They teach that the set retarders are calcium complexing agents selected from the group including sugar alcohols and the regulator is of formula I (abstract and pg. 4 line 17 to pg. 5, line 2). They teach providing cementitious binder sand cementitious mixture comprising additives, especially combinations of set retarders and regulators for cementitious binders, particularly for cements comprising clinkers based on Ye’elimite, to control the hydration reaction at early age (pg. 4, lines 1-5). They teach that the combination of retarders and regulators does not delay the curing of a cementitious mixture comprising cements which comprise Ye’elimite based clinkers to a level relevant for practical applications and therefore does not increase the final setting time (pg. 5, lines 23-33). They teach that the combination also does not decrease the compressive strength of the cementitious mixture at an early age when compared to a reference (pg. 5, lines 23-33). They teach that Ye’elimite refers to a calcium sulfoaluminate (pg. 6, lines 15-18). They teach that a cement or cementitious binder contains at least one clinker based on Ye’elimite (pg. 7, lines 9-15). They teach that the cement additionally contains calcium sulfate in the form of calcium sulfate-hemihydrate, calcium sulfate-dihydrate, and/or anhydrite (pg. 7, lines 24-28). They teach that sugar alcohols used for the retarder include glycerol, erythritol, etc. (pg. 14, lines 5-11).
From the teachings of Juilland, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the process of Yu in view of Schaepers or Schaepers in view of Mapei to have included a regulator and a retarder such as glycerol or erythritol in the mortar composition because Juilland teaches that such additives are desirable for controlling the hydration reaction in a cementitious binder mixture that includes calcium sulfoaluminate and calcium sulfate hemihydrate or anhydrite and because Schaepers teaches including retarders/accelerators such that it will be expected to provide desirable control of the hydration reaction of the mortar mixture of Schaepers. Therefore, the screed composition will comprise a polyol having the required functionality in the form of glycerol or erythritol.
Regarding claim 6, Yu in view of Schaepers and Juilland or Schaepers in view of Mapei and Juilland suggest the process of claim 5, where it is suggested to use glycerol or erythritol. Schaepers also teaches that the filler is selected from materials such as quartz sand and calcite (0032).
Claims 1-4, 7, 8, and 10-13 are rejected under 35 U.S.C. 103 as being unpatentable over Yu, CN 109868970 A (provided on the PTO-892 of 3/2/2026) in view of Motzet, US 2017/0029333 A1 (provided on the PTO-892 or 3/2/2026) and Kerneos, “Secar® 51”, 2006 and as evidenced by Lecolier, US 2006/0289163 A1.
Regarding claim 1, Yu teaches method for producing a floor construction on a substrate (a process for flooring production on a base substrate, pg. 1), comprising the following steps:
b) applying the screeding compound to the substrate (applying a crack-resistant screed or leveling mortar layer to the primed base layer, pg. 1-2),
c) drying the screeding compound to form a dried screed (air-drying the crack-resistant screed/leveling layer so as to provide a solidified or dried layer, pg. 2), and
d) applying a seal to the dried screed by
d2) applying a fluid or pasty sealing material to the dried screed, with the sealing material solidifying to form the seal (applying a putty sealing layer on the screed layer, pg. 2 and Fig. 1, where since the process is in forming a flooring, the seal is expected to dry for forming a solid flooring), and
e) optionally applying a floorcovering to the seal (applying a wear-resistant cover layer, pg. 1-2).
They do not teach the composition of the screed.
Motzet teaches a quick-drying gypsum composition for use as a gypsum filling compound and for the production of floor coverings (abstract). They teach that the composition contains 20 to 70% of a mixture of calcium aluminate and calcium sulfate hemihydrate and/or anhydrite and/or calcium sulfate dihydrate as hydraulic binders and 30 to 80% by weight of fillers, and wherein the weight ratio of calcium aluminate to calcium sulfate hemihydrate and/or anhydrite and/or calcium sulfate dihydrate binders lies in the range from 1:1 to 1:5 (abstract). They teach that the compositions are characterized by a particularly beneficial shrinkage behavior, such that stresses and cracks in the dried composition can be avoided (abstract). They teach that the calcium aluminate compounds consist substantially of calcium oxide and aluminum oxide constituents, as opposed to a cement (0020). They teach that the maximum SiO2 and iron oxide based on the weight of the compound is below 15 wt% (0020). They teach that it is preferably for the calcium sulfate binders to consist substantially of calcium sulfate hemihydrate (0024). They teach using the composition by mixing with water to form a fluid or pastelike gypsum composition, applying it to a substrate, and curing the composition (0067-0070). They teach that the composition can be used as a filling compound or screed (0074).
From the teachings of Motzet, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the process of Yu to have used the screed composition of Motzet as the screed composition and to have mixed it with water because Yu teaches that it is desirable to provide a crack resistant screed and Motzet provides a gypsum composition mixed with water for use as a screed having beneficial shrinkage behavior, such that stresses and cracks in the dried composition can be avoided such that it will be expected to provide a crack resistant screed as desired by Yu. Therefore, Yu in view of Motzet provides the process of claim 1 using a screed or mortar composition including calcium aluminate and calcium sulfate hemihydrate and/or anhydrite binders in an amount meeting the claimed range and filler in an amount meeting the claimed range, where the aluminate binder to calcium sulfate binder has a ratio meting the claimed range.
They do not teach that the aluminate binder is calcium aluminate cement or calcium sulfoaluminate cement.
Kerneos teaches using SECAR® as a refractory cement as the primary binder in mortars and concretes, where it is composed mainly of calcium aluminates and it can be used as the primary binder or in combination with other reactive minerals (pg. 1, section 1). They teach that all calcium aluminate cements possess the general properties of good refractoriness and high early strength when used alone as the principal hydraulic binder, where the latter properties is often used in combination with other minerals such as calcium sulfate and/or Portland cement to produce high early strengths and/or shrinkage compensations through the formation of ettringite (pg. 1, section 1). They teach that SECAR® 51 is a calcium aluminate cement (pg. 1, section 1). They teach that the range for alumina is greater than 50%, for CaO is less than 39.5%, for SiO2 is less than 6%, for iron oxide is less than 3%, as measured by XRF (pg. 1, section 2), such that the percentages are understood to be in weight percent as evidenced by Lecolier (Table 1).
From the teachings of Kerneos as evidenced by Lecolier, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the process of Yu in view of Motzet to have used SECAR® 51 as a calcium aluminate cement in the composition because Kerneos teaches that SECAR® 51 is a refractory cement that possesses desirable properties and it has a silica and iron oxide content within the range desired by Motzet with a combined CaO and Al2O3 range within or overlapping the range desired by Motzet such that it will be expected to provide a desirable calcium aluminate material for use in the gypsum composition. Therefore, in the process of Yu in view of Motzet and Kerneos and as evidenced by Lecolier, the composition will include an aluminate binder selected from calcium aluminate cement, calcium hemihydrate, and one or more fillers, where the fillers and binders meet the claimed ranges and the ratio of the binders meet the claimed range. According to 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.” According to MPEP 2131.03, “[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art.”
Further, according to MPEP 2144.05 II A, “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). Therefore, the teachings of Yu in view of Motzet and Kerneos as evidenced by Lecolier are considered to render the claimed ranges obvious in the absence of a showing that the ranges are critical.
Regarding claim 2, Yu in view of Motzet and Kerneos as evidenced by Lecolier suggest the process of claim 1. Motzet further teaches that the ratio of the calcium aluminate to calcium sulfate hemihydrate binder sis in the range from 1:1.6 to 1:4, more preferably from about 1:2 to 1:3.5, or 1:2.1 to 1:2.8 (0023), so as to be within the claimed range. According to MPEP 2131.03, “[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art.” Further, according to MPEP 2144.05 II A, “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). Therefore, the teachings of Yu in view of Motzet and Kerneos as evidenced by Lecolier are considered to render the claimed ranges obvious in the absence of a showing that the ranges are critical.
Regarding claim 3, Yu in view of Motzet and Kerneos as evidenced by Lecolier suggest the process of claim 1. Motzet further teaches that the amount of filler is in the range of 35% to 75 wt % (0028) and the binders are in the range of about 20 to 60 wt% (0023), so as to be within the claimed range. According to MPEP 2131.03, “[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art.” Further, according to MPEP 2144.05 II A, “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). Therefore, the teachings of Yu in view of Motzet and Kerneos as evidenced by Lecolier are considered to render the claimed ranges obvious in the absence of a showing that the ranges are critical.
Regarding claim 4, Yu in view of Motzet and Kerneos as evidenced by Lecolier suggest the process of claim 1. Motzet further teaches that a preferred composition includes 8 to 15 wt% of the calcium aluminate binder, 25 to 40 wt % of calcium hemihydrate, 5 to 15 wt % of calcium carbonate as filler, 40 to 65 wt % of silica sand, i.e. another filler (0026 and 0049-0053), so as to provide a composition overlapping the claimed ranges. According to 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.” Further, according to MPEP 2144.05 II A, “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). Therefore, the teachings of Yu in view of Motzet and Kerneos as evidenced by Lecolier are considered to render the claimed ranges obvious in the absence of a showing that the ranges are critical.
Regarding claim 7, Yu in view of Motzet and Kerneos as evidenced by Lecolier suggest the process of claim 1. Motzet further teaches including a lithium salt such as lithium carbonate (0029) and tartaric acid and/or a tartaric salt (0031).
Regarding claim 8, Yu in view of Motzet and Kerneos as evidenced by Lecolier suggest the process of claim 1. Yu further teaches that the base layer is concrete (pg. 1).
Regarding claim 10, Yu in view of Motzet and Kerneos as evidenced by Lecolier suggest the process of claim 1. While they do not teach that the drying time of the screed is substantially independent on the layer thickness of the screed, since they provide the composition of claim 1 using overlapping amounts, the composition is also expected to result in drying times that overlap a range in which they are substantially independent of the layer thickness. According to MPEP 2112.01 I, “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)”.
Regarding claim 11, Yu in view of Motzet and Kerneos as evidenced by Lecolier suggest the process of claim 1. Motzet teaches that the composition is quick drying (abstract). While they do not teach that the drying time is not more than 24 hours, since they provide the composition of claim 1 using overlapping amounts, the composition is also expected to dry within a time overlapping the claimed range. According to MPEP 2112.01 I, “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)”.
Regarding claim 12, Yu in view of Motzet and Kerneos as evidenced by Lecolier suggest the process of claim 1. Yu further teaches that the putty sealing layer is made by mixing high-quality fin sand cement, hydrated lime, and water (0012), such that the fluid or pasty sealing material is understood to be a slurried sealant.
Regarding claim 13, Yu in view of Motzet and Kerneos as evidenced by Lecolier suggest the process of claim 1. Yu further teaches applying an artistic resin base color effect layer, a transparent artistic resin layer, and a wear-resistant topcoat layer (0009), such that the floorcovering is considered to include a plastic-based flooring.
Claims 1-4 and 7-13 are rejected under 35 U.S.C. 103 as being unpatentable over Motzet, US 2017/0029333 A1 in view of Kerneos, “Secar® 51”, 2006 and Mapei, “Installation of Heated Screeds and Substrates for Laying Floors”, 2013 and as evidenced by Lecolier, US 20016/0289163 A1 and for claim 13 as further evidenced by Mapei, “Waterproofing Baths and Swimming Pools”, 2014.
Regarding claims 1-4 and 8, as discussed above, Motzet in view of Kerneos and as evidenced by Lecolier provides a screed composition having the claimed components in amount within or overlapping the claimed ranges. According to 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.” According to MPEP 2131.03, “[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art.”
Further, according to MPEP 2144.05 II A, “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). Therefore, the teachings of Motzet in view of Kerneos as evidenced by Lecolier are considered to render the claimed ranges obvious in the absence of a showing that the ranges are critical.
They do not teach producing a floor construction using the claimed method.
As discussed above, from the teachings of Mapei, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the process of Motzet in view of Kerneos as evidenced by Lecolier to have used the gypsum screed composition as a screed in flooring construction by applying the screed mixed with water to a concrete substrate, dried the screeding compound, applied a seal to any cracks by using a fluid epoxy mixture, dried (solidified) the sealing material to form the seal of the cracks, and then to have applied any desired floor coverings (tile, plastic, etc.) because Motzet teaches that such compositions are used as screed layers and Mapei teaches that screed layers are applied to concrete substrates and that plastic (polyethylene or resin) or ceramic tiles are applied onto the surface for floor coverings, where cracks in the screed are sealed with epoxy resin such that it will be expected to provide a desirable use for the gypsum screed composition of Motzet in view of Kerneos and as evidenced by Lecolier. Therefore, the screed composition will be mixed with water, applied to a concrete substrate, dried, a fluid sealing material will be applied and dried (solidified) to seal any cracks, and a floor covering will be applied.
Regarding claim 7, Motzet in view of Kerneos and Mapei and as evidenced by Lecolier suggest the process of claim 1. Motzet further teaches including a lithium salt such as lithium carbonate (0029) and tartaric acid and/or a tartaric salt (0031).
Regarding claim 9, Motzet in view of Kerneos and Mapei and as evidenced by Lecolier suggest the process of claim 1. Motzet further teaches forming thick layers of the gypsum composition having a thickness of 10 mm or more and up to 60 mm and thin layer having a thickness of less than 10 mm, preferably in the range of 1 to 6 mm (0041).
Mapei further teaches that the thickness of the screed depends on the type of screed to be laid (pg. 4, section 3). They teach that unbonded screed should have a thickness of at least 35 mm (pg. 7, section 4.1). They teach that the minimum thickness of floating screed sis dependent on the material used to make the screed and the mechanical stresses (pg. 9, section 4.3). They provide examples of screed thickness for floating screeds of 4 and 5 cm (Table 1).
From this, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have formed the screed to have a thickness in the range of 10 mm or more and up to 60 mm or in the range of 1 to 6 mm so as to be within or overlapping the claimed range because Motzet indicates that such ranges are desirable for the composition and Mapei teaches that the thickness is dependent on the composition such that it will be expected to provide a desirable thickness range for the screed. Therefore, the thickness will be within or overlapping the claimed range. According to MPEP 2131.03, “[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art.” According to 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.”
Regarding claim 10, Motzet in view of Kerneos and Mapei and as evidenced by Lecolier suggest the process of claim 1. While they do not teach that the drying time of the screed is substantially independent on the layer thickness of the screed, since they provide the composition of claim 1 using overlapping amounts, the composition is also expected to result in drying times that overlap a range in which they are substantially independent of the layer thickness. According to MPEP 2112.01 I, “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)”.
Regarding claim 11, Motzet in view of Kerneos and Mapei and as evidenced by Lecolier suggest the process of claim 1. Motzet teaches that the composition is quick drying (abstract). While they do not teach that the drying time is not more than 24 hours, since they provide the composition of claim 1 using overlapping amounts, the composition is also expected to dry within a time overlapping the claimed range. According to MPEP 2112.01 I, “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)”.
Regarding claim 12, Motzet in view of Kerneos and Mapei and as evidenced by Lecolier suggest the process of claim 1. Mapei further teaches that the sealing with an epoxy resin such as EPORIP which is dried (pg. 28, section 8). As evidenced by Mapei 2014, EPORIP is a two-component solvent-free epoxy adhesive (pg. 18, section 4.3). Therefore, the fluid sealing material is understood to be a reactive resin because it is a two-component epoxy, indicating that the two components will react when mixed so as to provide the epoxy adhesive.
Regarding claim 13, Motzet in view of Kerneos and Mapei and as evidenced by Lecolier suggest the process of claim 1. Mapei teaches using various floor coverings over screeds, such as a polyethylene sheet (Fig. 4.3.1), terracotta tiles (Fig. 4.3.2), resin flooring (Fig. 4.4.), ceramic tiles (Fig. 4.5), wood flooring (Fig. 4.8), and porcelain tiles (Fig. 4.1 and Fig. 4.12). From this, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have selected a floorcovering such as tile or a plastic-based flooring because Mapei indicates that such flooring types are desirably placed over screeds.
Claims 5 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Yu in view of Motzet and Kerneos as evidenced by Lecolier or Motzet in view of Kerneos and Mapei and as evidenced by Lecolier as applied to claim 1 above, and further in view of Juilland, WO 2020/109186 A1.
Regarding claim 5, Yu in view of Motzet and Kerneos as evidenced by Lecolier and Motzet in view of Kerneos and Mapei and as evidenced by Lecolier suggest the process of claim 1. Motzet further teaches including a lithium salt to accelerate curing, where the composition can also include curing retarders (0029 and 0033).
They do not teach including a polyol.
As discussed above, from the teachings of Juilland, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have modified the process of Yu in view of Motzet and Kerneos as evidenced by Lecolier or Motzet in view of Kerneos and Mapei as evidenced by Lecolier to have included a regulator and a retarder such as glycerol or erythritol in the mortar composition because Juilland teaches that such additives are desirable for controlling the hydration reaction in a cementitious binder mixture that includes calcium sulfoaluminate and calcium sulfate hemihydrate or anhydrite and because Motzet teaches including retarders/accelerators such that it will be expected to provide desirable control of the hydration reaction of the mortar mixture of Yu in view of Motzet and Kerneos as evidenced by Lecolier or Motzet in view of Kerneos and Mapei as evidenced by Lecolier. Therefore, the screed composition will comprise a polyol having the required functionality in the form of glycerol or erythritol.
Regarding claim 6, Yu in view of Motzet, Kerneos, and Juilland as evidenced by Lecolier or Motzet in view of Kerneos, Mapei, and Juilland as evidenced by Lecolier suggest the process of claim 5, where it is suggested to use glycerol or erythritol. Motzet also teaches that the filler is selected from materials such as silica sand and calcium carbonate (0026 and 0052-0053).
Conclusion
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/CHRISTINA D MCCLURE/ Examiner, Art Unit 1718
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