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 6/12/2024 and 12/6/2023 have been considered by the examiner.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3 are 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 1 recites “gravel with a fraction 0/4” it is unclear whether the applicant intends to claim a size range such as 0-4 mm or some other fraction. Clarification is required. For purposes of examination this limitation is interpreted at a size range of 0-4 mm.
Claim 1 recites plastic crumb. This term is indefinite as there is no uniformly recognized size range for “crumb”. Giving the claims the broadest reasonable interpretation in view of the specification and for purposes of examination any particulate, grain, flake, etc. of plastic will be deemed to meet the limitation for crumb.
Claim 2 does not recite that it depends from claim 1 rendering same indefinite as it is unclear the applicant intends to recite another independent claim. For purposes of examination, giving the claim the broadest reasonable interpretation claim 2 is interpreted to depend from claim 1. This claim may be corrected (Amended) 2. The dry mixture of cement plastic screed of claim 1 wherein….
Claim 3 does not recite the claim from which it depends rendering same indefinite as it is unclear the applicant intends this claim to depend from claim 1 or claim 2. For purposes of examination, giving the claim the broadest reasonable interpretation claim 2 is interpreted to depend from claim 1. This claim may be corrected (Amended) 3. The dry mixture of cement plastic screed of claim 1 wherein….
Claim 3 recites a tradename and does not identify the chemical encompassed thereby rendering same indefinite. See MPEP 2173.05 (u) If the trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of the 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). See also Eli Lilly & Co. v. Apotex, Inc., 837 Fed. Appx. 780, 784-85, 2020 USPQ2d 11531 (Fed. Cir. 2020The use of the term Melment 10/40, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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]
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 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.
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) 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.)
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAMELA HL WEISS whose telephone number is (571)270-7057. The examiner can normally be reached M-Thur 830 am-700 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Coris Fung can be reached at (571) 270-5713. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PAMELA H WEISS/Primary Patent Examiner, Art Unit 1732