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 .
Claim Objections
Claims 1-3 are objected to because of the following informalities: claim 1 line 6 recite “and;”, which appears to have a typographical error and should be “; and”. Appropriate correction is required.
Claim 2-3 are objected due to their dependency on claim 1.
Applicant is advised that should claims 6-9 are be found allowable, claims 10-13 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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 and 7-9 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 line 5 recites “coarse” and “fine”, which are relative terms which renders the claim indefinite. The terms “coarse” and “fine” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Examiner suggests clarifying amendment so as to remove the ambiguity as set forth above.
Claim 7 line 2 recites “a coarse aggregate”, which is indefinite because it is not clear if the recited “coarse aggregate” is the same or different from the coarse aggregate recited in claim 6.
Examiner will treat the “coarse aggregate” in claim 7 as the same “coarse aggregate” in claim 6.
Examiner suggests amending the claim to either i) “a” with “the”, or ii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Claim 7 line 3 recites “a fine aggregate”, which is in indefinite because it is not clear if the recited “coarse aggregate” is the same or different from the coarse aggregate recited in claim 6.
Examiner will treat the “fine aggregate” in claim 7 as the same “fine aggregate” in claim 6.
Examiner suggests amending the claim to either i) “a” with “the”, or ii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Claim 8 line 4 recites “a natural coarse and fine aggregate”, which is in indefinite because it is not clear if the recited “natural coarse and fine aggregate” is the same or different from the natural coarse and fine aggregate recited in claim 6.
Examiner will treat the “natural coarse and fine aggregate” in claim 8 as the same “natural coarse and fine aggregate” in claim 6.
Examiner suggests amending the claim to either i) “a” with “the”, or ii) some other clarifying amendment so as to remove the ambiguity as set forth above.
Claim 9 line 4 recites “a natural coarse and fine aggregate”, which is in indefinite because it is not clear if the recited “natural coarse and fine aggregate” is the same or different from the natural coarse and fine aggregate recited in claim 6.
Examiner will treat the “natural coarse and fine aggregate” in claim 9 as the same “natural coarse and fine aggregate” in claim 6.
Examiner suggests amending the claim to either i) “a” with “the”, or ii) some other clarifying amendment so as to remove the ambiguity as set forth above.
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 1-3 and 6-13 are rejected under 35 U.S.C. 103 as being unpatentable over Ali et al. (US 2020/0181015b A1) (“Ali” hereinafter).
Regarding claim 1, Ali teaches a composition of matter (see Ali at [0013] teaching a structural lightweight concrete). Concrete is taken to meet the claimed composition based on the structure as outlined below, comprising:
40 to 75 percent by weight of a waste material (see Ali at [0013] teaching 5-40 wt% coarse aggregate… the coarse aggregate comprises 10-100 wt% waste plastic pieces, relative to a total weight of the coarse aggregate). The amount of waste material is 0.5 wt% to 40 wt% (or (5 x 10%) to (40 x 100%)) (see MPEP 2144.05(I)),
whereby said waste material is comprised of 49.5 - 70% by weight of limestone (see Ali at [0026] teaching the coarse aggregate further comprises at least one selected from the group consisting of… limestone… at a weight percentage of 1-90 wt% relative to a total weight of the coarse aggregate) (see MPEP 2144.05(I));
15 to 16 percent by weight of a portland cement (see Ali at [0013] teaching 12-25 wt% Portland cement) (see MPEP 2144.05(I));
5 to 36 percent by weight of… a natural fine aggregate (see Ali at [0013] teaching 37-57 wt% fine aggregate, see Ali at [0070] teaching the fine aggregate is sand… as used herein, “sand” refers to naturally occurring granular material composed of finely divided rock and mineral particles). A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close enough that one skilled in the art would have expected them to have the same properties (see MPEP § 2144.05). In this instance, Ali also teaches that fine and coarse aggregates make up the bulk of a concrete mixture… sand, natural gravel, and crushed stone are used mainly for this purpose… recycled aggregates… are increasingly used as partial replacements for natural aggregates… the presence of aggregate greatly increases the durability of concrete above that of cement, which is a brittle material in its pure state, reduces cost, and controls cracking caused by temperature changes… particle shape and surface texture of both fine and coarse aggregates influence proportioning of mixtures in such factors as workability, pumpability, fine-to-coarse aggregate ratio, cement binder content, and water requirement (see Ali at [0067]-[0068]). There are no expected differences in properties between the concrete as taught by Ali and the claimed composition of matter in claim 1; and
8 to 9% by weight of water (see Ali at [0013] teaching 5-12 wt% water) (see MPEP 2144.05(I)).
Regarding claim 2, Ali teaches the limitations as applied to claim 1 above, and Ali further teaches wherein the size of said waste material is one and three-quarter inches or less (see Ali at [0013] teaching these waste plastic pieces have an average longest dimension of 1-12 mm (or 0.04 inches to 0.47 inches) (see MPEP 2144.05(I)).
Regarding claim 3, Ali teaches the limitations as applied to claim 1 above, and Ali further teaches wherein the size of said waste material is one eighth of an inch or less (see Ali at [0013] teaching these waste plastic pieces have an average longest dimension of 1-12 mm (or 0.04 inches to 0.47 inches) (see MPEP 2144.05(I)).
Regarding claims 6 and 10, Ali teaches a composition of matter (see Ali at [0013] teaching a structural lightweight concrete). Concrete is taken to meet the claimed composition based on the structure as outlined below, comprising:
10 to 80 percent by weight of a waste material (see Ali at [0013] teaching 5-40 wt% coarse aggregate… the coarse aggregate comprises 10-100 wt% waste plastic pieces, relative to a total weight of the coarse aggregate). The amount of waste material is 0.5 wt% to 40 wt% (or (5 x 10%) to (40 x 100%)) (see MPEP 2144.05(I)),
whereby said waste material is comprised of 49.5 - 70% by weight of limestone (see Ali at [0026] teaching the coarse aggregate further comprises at least one selected from the group consisting of… limestone… at a weight percentage of 1-90 wt% relative to a total weight of the coarse aggregate) (see MPEP 2144.05(I));
11 to 18 percent by weight of a portland cement (see Ali at [0013] teaching 12-25 wt% Portland cement) (see MPEP 2144.05(I));
7 - 9% by weight of a water (see Ali at [0013] teaching 5-12 wt% water) (see MPEP 2144.05(I)); and
whereby… a natural fine aggregate can be mixed with said 10 to 80 percent by weight of waste material and whereby the waste material can be either… coarse waste material… to achieve a desired concrete mix based on a particular application said concrete mix is intended for (see Ali at [0013] teaching 37-57 wt% fine aggregate… the coarse aggregate comprises 10-100 wt% waste plastic pieces, relative to a total weight of the coarse aggregate, see Ali at [0070] teaching the fine aggregate is sand… as used herein, “sand” refers to naturally occurring granular material composed of finely divided rock and mineral particles) (see MPEP 2144.05(I)), and
said fine waste material is 1/8 inches or less (see Ali at [0013] teaching the fine aggregate… with an average particle size of less than 1.5 mm (or 0.06 inches)) (see MPEP 2144.05(I)).
Ali does not explicitly teach whereby said coarse waste material size is 1 3/4 inches. However, Ali teaches these waste plastic pieces have an average longest dimension of 1-12 mm (or 0.04 inches to 0.47 inches) (see Ali at [0013]). Furthermore, Ali teaches that fine and coarse aggregates make up the bulk of a concrete mixture… sand, natural gravel, and crushed stone are used mainly for this purpose… recycled aggregates… are increasingly used as partial replacements for natural aggregates… the presence of aggregate greatly increases the durability of concrete above that of cement, which is a brittle material in its pure state, reduces cost, and controls cracking caused by temperature changes… particle shape and surface texture of both fine and coarse aggregates influence proportioning of mixtures in such factors as workability, pumpability, fine-to-coarse aggregate ratio, cement binder content, and water requirement (see Ali at [0067]-[0068]).
As such, one of ordinary skill in the art would appreciate that the particle shape and surface texture of both fine and coarse aggregates are result effective variables that influence proportioning of mixtures in such factors as workability, pumpability, fine-to-coarse aggregate ratio, cement binder content, and water requirement, and could be optimized to increase the durability of concrete above that of cement.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have optimized the particle shape and surface texture of both fine and coarse aggregates as taught by Ali in order to provide a concrete that has increased the durability so as to arrive at a “coarse waste material with a size of 1 3/4 inches” as claimed.
Regarding claim 7 and 11, Ali teaches the limitations as applied to claims 6 and 10 respectively above, and Ali further teaches 17 to 18 percent of portland cement (see Ali at [0013] teaching 12-25 wt% Portland cement) (see MPEP 2144.05(I)), and
7 to 7.5 percent by weight of water (see Ali at [0013] teaching 5-12 wt% water) (see MPEP 2144.05(I)), and
whereby said waste material coarse and fine aggregate can be used interchangeably with said… coarse aggregate (see Ali at [0013] teaching the coarse aggregate comprises 10-100 wt% waste plastic pieces, relative to a total weight of the coarse aggregate).
Ali does not explicitly teach 23 to 24 percent by weight of a fine aggregate and 51 to 52 percent by weight of a coarse aggregate. However, Ali teaches 37-57 wt% fine aggregate… 5-40 wt% coarse aggregate (see Ali at [0013]). Furthermore, Ali teaches that fine and coarse aggregates make up the bulk of a concrete mixture… sand, natural gravel, and crushed stone are used mainly for this purpose… recycled aggregates… are increasingly used as partial replacements for natural aggregates… the presence of aggregate greatly increases the durability of concrete above that of cement, which is a brittle material in its pure state, reduces cost, and controls cracking caused by temperature changes… particle shape and surface texture of both fine and coarse aggregates influence proportioning of mixtures in such factors as workability, pumpability, fine-to-coarse aggregate ratio, cement binder content, and water requirement (see Ali at [0067]-[0068]).
As such, one of ordinary skill in the art would appreciate that the amount of fine and coarse aggregate and fine-to-coarse aggregate ratio are result effective variables that are influenced by particle shape and surface texture of both fine and coarse aggregates, and could be optimized to increase the durability of concrete above that of cement.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have optimized the amount of fine aggregate and coarse aggregate as taught by Ali in order to provide a concrete that has increased durability above that of cement so as to arrive at “23 to 24 percent by weight of fine aggregate” and “51 to 52 percent by weight of coarse aggregate”, respectively as claimed.
Regarding claim 8 and 12, Ali teaches the limitations as applied to claims 6 and 10 respectively above, and Ali further teaches comprising 14 to 15 percent of portland cement (see Ali at [0013] teaching 12-25 wt% Portland cement) (see MPEP 2144.05(I)),
(see Ali at [0013] teaching 37-57 wt% fine aggregate) (see MPEP 2144.05(I)), and
7 to 7.5 percent by weight of water (see Ali at [0013] teaching 5-12 wt% water) (see MPEP 2144.05(I)), and
whereby said waste material coarse and fine aggregate can be used interchangeably with the natural coarse and fine aggregate (see Ali at [0067] teaching fine and coarse aggregates make up the bulk of a concrete mixture… sand, natural gravel, and crushed stone are used mainly for this purpose… recycled aggregates… are increasingly used as partial replacements for natural aggregates).
Ali does not explicitly teach 24 to 25 percent by weight of fine aggregate and 54 to 54.5 percent by weight of coarse aggregate. However, Ali teaches 37-57 wt% fine aggregate… 5-40 wt% coarse aggregate (see Ali at [0013]). Furthermore, Ali teaches that fine and coarse aggregates make up the bulk of a concrete mixture… sand, natural gravel, and crushed stone are used mainly for this purpose… recycled aggregates… are increasingly used as partial replacements for natural aggregates… the presence of aggregate greatly increases the durability of concrete above that of cement, which is a brittle material in its pure state, reduces cost, and controls cracking caused by temperature changes… particle shape and surface texture of both fine and coarse aggregates influence proportioning of mixtures in such factors as workability, pumpability, fine-to-coarse aggregate ratio, cement binder content, and water requirement (see Ali at [0067]-[0068]).
As such, one of ordinary skill in the art would appreciate that the amount of fine and coarse aggregate and fine-to-coarse aggregate ratio are result effective variables that are influenced by particle shape and surface texture of both fine and coarse aggregates, and could be optimized to increase the durability of concrete above that of cement.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have optimized the amount of fine aggregate and coarse aggregate as taught by Ali in order to provide a concrete that has increased durability above that of cement so as to arrive at “24 to 25 percent by weight of fine aggregate” and “54 to 54.5 percent by weight of coarse aggregate”, respectively as claimed.
Regarding claim 9 and 13, Ali teaches the limitations as applied to claims 6 and 10 respectively above, and Ali further teaches comprising 11 to 12 percent of portland cement (see Ali at [0013] teaching 12-25 wt% Portland cement) (see MPEP 2144.05(I)),
7 to 7.5 percent by weight of water (see Ali at [0013] teaching 5-12 wt% water) (see MPEP 2144.05(I)), and
whereby said waste material coarse and fine aggregate can be used interchangeably with the natural coarse and fine aggregate (see Ali at [0067] teaching fine and coarse aggregates make up the bulk of a concrete mixture… sand, natural gravel, and crushed stone are used mainly for this purpose… recycled aggregates… are increasingly used as partial replacements for natural aggregates).
Ali does not explicitly teach Ali does not explicitly teach 25 to 26 percent by weight of fine aggregate and 55 to 56 percent by weight of coarse aggregate. However, Ali teaches 37-57 wt% fine aggregate… 5-40 wt% coarse aggregate (see Ali at [0013]). Furthermore, Ali teaches that fine and coarse aggregates make up the bulk of a concrete mixture… sand, natural gravel, and crushed stone are used mainly for this purpose… recycled aggregates… are increasingly used as partial replacements for natural aggregates… the presence of aggregate greatly increases the durability of concrete above that of cement, which is a brittle material in its pure state, reduces cost, and controls cracking caused by temperature changes… particle shape and surface texture of both fine and coarse aggregates influence proportioning of mixtures in such factors as workability, pumpability, fine-to-coarse aggregate ratio, cement binder content, and water requirement (see Ali at [0067]-[0068]).
As such, one of ordinary skill in the art would appreciate that the amount of fine and coarse aggregate and fine-to-coarse aggregate ratio are result effective variables that are influenced by particle shape and surface texture of both fine and coarse aggregates, and could be optimized to increase the durability of concrete above that of cement.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have optimized the amount of fine aggregate and coarse aggregate as taught by Ali in order to provide a concrete that has increased durability above that of cement so as to arrive at “25 to 26 percent by weight of fine aggregate” and “55 to 56 percent by weight of coarse aggregate”, respectively as claimed.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3 and 6-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 and 13-15 of U.S. Patent No. 2024/0279116 (“US ‘116” hereinafter). Although the claims at issue are not identical, they are not patentably distinct from each other because both the pending application and US ‘116 recite a composition of matter comprising Portland cement, water, and a mixture of natural and/or waste fine and coarse aggregate with the same or overlapping ranges.
Conclusion
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/MARITES A GUINO-O UZZLE/Examiner, Art Unit 1731