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 .
Applicant has amended the claims overcoming the previous rejections under section 112. New rejections under section 112 addressing the amended claims are below set forth.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 3 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 3 recites “sulphonated polyconcondensation” this term does not appear to have support in the original filing
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 3 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 3 recites “sulphonated polyconcondensation” this term appears to be incomplete: i.e. is this a sulfonated polycondensation product of some reactants? No information is provided either in the specification or through affidavit with supporting commercial product documentation to establish that Melment 10/40 is a sulfonated polycondensation.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ali, Jose, et al (US 2019/0337850) alternatively further in view of Eckert et al (US 2012/0048466)
Regarding Claims 1-3:
Ali, Jose, et al (US 2019/0337850) discloses a concrete mixture comprises coarse aggregate and recycled plastic pieces from waste plastic such as polyethylene in the form of flakes, fibers or granules (i.e. crumbs) (Abstract)
Regarding Dry Mixture:
The composition may be prepared as a premix to which water may be added [0109] 9a dry mixture) [0068] (dry ingredients) the dry ingredients may be mixed with each other before mixing with the water [0105] the composition may be a dry ready mix [0112]
Regarding Plastic:
The plastic includes granules, flake and fibers such as in a size diameter of 2 mm and 2-5 mm long [1036-0137] meeting the limitation for plastic crumb.
The composition includes coarse aggregate which includes plastic of 10-100% of the coarse aggregate. The coarse aggregate is 5-40 wt.% of the composition (See claim 1 reference)( overlapping the range of plastic)
Regarding Portland Cement:
The composition comprises 12-25 wt.% Portland cement (overlapping the claimed range) [0013]
The Portland cement includes Type CEM 1 EN 197-1 (i.e. meeting claim 2 for CEM I 32.5)[0068]
Regarding silica sand, silica fume and gravel:
The composition comprises aggregates such as sand and gravel [0069]
The composition comprises 37-57 wt. % fine aggregate (fine aggregate i.e. sand and silica fume), 5-40 wt.% coarse aggregate [0013] (coarse aggregate – i.e. gravel)
The fine aggregate is sand having an average particle size of less than 1.5 mm [0026] The fine aggregate includes sand such as desert or dune sand [0071] the most common constituent of sand is silica [0072] [0075] fine aggregate includes sand [0075] Fine aggregate is sand with average particle size of 700 microns or less or 550-650 microns [0074] (being within the range of claim 1)
The composition may include a blend including silica fume [0068]
The composition includes gravel having a particle size 2 to 64 mm [0073] (overlapping the claimed range of 0-4 mm fraction) being a coarse aggregate. The coarse aggregate is 5-40 wt.% of the composition based on the amount of plastic in the coarse aggregate the amount of gravel will overlap the claimed range.
In terms of particle size, sand particles range in diameter from 0.0625 mm to 2 mm. An individual particle in this range is termed a sand grain. By definition sand grains are between gravel (particles ranging from 2 mm to 64 mm) and silt (particles ranging from 0.004 mm to 0.0625 mm). ISO 14688 grades sands as fines, medium and coarse with ranges of 0.063 mm to 0.2 mm Sand is also commonly divided into five subcategories based on size: very fine sand (0.0625-0.125 mm diameter), fine sand (0.125-0.250 mm diameter), medium sand (0.250-0.500 mm diameter), In terms of the present disclosure, the fine aggregate of the wet concrete slurry may be sand, and may be very fine sand, fine sand, medium sand, or even coarse sand, preferably very fine sand, fine sand or medium sand. (as such the fine sand overlap the range of claim 1) [0073]
Regarding Superplasticizer:
The composition comprises superplasticizer of 0.1 to 2 wt.% [0022] the superplasticizers are high range water reducers which aid in reducing agglomeration by acting as a dispersant [0102] including melamine type superplasticizers including sulfonated melamine, poly melamine sulfonates, sulfonated melamine formaldehyde [0104] (meeting the limitation of claims 1 and 3 rendering obvious sulfonated polycondensation) the examiner maintains that 2 wt. % is sufficiently close to 2.7 wt.% so as to render the claimed composition obvious to one of ordinary skill in the art at the time of filing the invention in the absence of evidence of criticality of ranges (the composition of the prior art is akin to that of the instant claims in that it comprises each and every component in ranges which overlap the instantly claimed ranges and is used as a cement composition and would be expected to perform in the same and/or similar manner so as not to be patentably distinct).
Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985)
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)
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)
No other components are required.
Assuming arguendo the amount of plasticizer is not obvious to one of ordinary skill in the art at the time of filing the invention,
Eckert teaches a cement composition comprising at least one aggregate and from about 0.2 to 5 wt.% superplasticizer (Abstract) The cementous material includes Portland cement and silica fume [0018] and fine and coarse aggregates of silica sand and gravel [0029] Superplasticizers for cement include cement dispersants and may be high range water reducers such as sulfonated melamine formaldehyde condensate, etc. and Melment RTM 10 which is commercially available [0035-0037] the superplasticizer may be added in dry form [0035] (further meeting claim 3)
It would have been obvious to one of ordinary skill in the art at the time of filing the invention to add the superplasticizer such as Melment in the composition of Ali in the amounts taught therein in order to impart improved water reduction, dispersancy to the composition of Ali with a reasonable expectation of success. Further since Ali expressly contemplates the use of melamine type superplasticizers so doing so amounts to nothing more than use of a known compound which is commercially available (Melment) in a known environment (cement composition mixes) to achieve an entirely expected result (improved water reduction, reduced agglomeration better dispersions, etc.)
Response to Arguments
Applicant's arguments filed 5/4/2026 have been fully considered but they are not persuasive.
Applicant argues the ranges distinguish the prior art from the instantly claimed invention. This is not persuasive as the prior art as more fully above set forth teaches ranges which are within the claimed ranges and also which overlap the claimed ranges. The prior art teaches the instantly claimed fine aggregate silica sand. The prior art teaches fine aggregate of silica sand having the particle sizes as above set forth and coarse aggregate. The composition teaches the claimed gravel with particles sizes within/overlapping the claimed ranges. 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)"
A prima facie showing of obviousness by a preponderance of the evidence has been established.
The rejection is made final.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to 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.
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/PAMELA H WEISS/Primary Patent Examiner, Art Unit 1732
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