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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that use the word “means” or “step” but are nonetheless not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph because the claim limitation(s) recite(s) sufficient structure, materials, or acts to entirely perform the recited function.
Such claim limitation(s) is/are:
“a means of transport” in claims 18 and 19.
Because this/these claim limitation(s) is/are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are not being interpreted to cover only the corresponding structure, material, or acts described in the specification as performing the claimed function, and equivalents thereof.
If applicant intends to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to remove the structure, materials, or acts that performs the claimed function; or (2) present a sufficient showing that the claim limitation(s) does/do not recite sufficient structure, materials, or acts to perform the claimed function.
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 – 17 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 the limitation "the point of placement" in line 6. There is insufficient antecedent basis for this limitation in the claim. There is no prior recitation of “a point of placement”, and it is not clear if the recited “point of placement” is envisioned by the Applicant to be the same as the previously recitation of “a location for the application of the latex modified concrete” in lines 2-3. Clarification is required. The limitation is interpreted as - -a point of placement- -, for examination purposes.
Claim 8 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential elements, such omission amounting to a gap between the elements. See MPEP § 2172.01. The omitted elements are: in this case, the phrase "adding approximately 140 to 180-degree liquid" omits what specific scale and for what particular property is meant by the claimed degrees. If the omitted element is interpreted as a degree of temperature, there is still a need for disclosure of the scale used (i.e., Fahrenheit, Celsius, Kelvin), since such temperatures would have different effects on their effect (e.g., 180-degrees C is 356-degrees F, way above the boiling temperature of water). Furthermore, it is noted that "degrees" could serve as a unit within a specific, defined scale for a particular property, separate from temperature e.g., degrees Baumé (°Bé, for measuring the density of liquids), thereby rendering the scope of the claim(s) unascertainable. The limitation is being interpreted as “140 to 180-degrees Fahrenheit”, for examination purposes.
Claim 9 in lines 3-4, recites, inter alia, “any one of the group consisting of: a latex, a water, and a modifier, a rock, or a sand”. The word “and” in the phrase “a water, and a modifier” renders the claim vague and unclear, since it seems that the word “and” is not needed in the recited group when, for example, the phrase is interpreted as a recitation of the individual elements (“any one”) of the group (e.g., “any one of the group consisting of: a latex, a water, a modifier, a rock, or a sand”), where the elements “a water, a modifier” are intended as two separate elements of the “any one of the group consisting of” limitation, which could be individually selected/present. Conversely, it is not clear if the Applicant envisioned for the phrase “a water, and a modifier” to be taken together e.g., as a single element of the group (“a water and a modifier”). Clarification is required.
Claims 2-8, and claims 10-17 are rejected as being indefinite based in their dependent status from rejected claim 1 or claim 9, respectively, from which -directly or indirectly- possess all those limitations which rendered the independent claim indefinite.
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 – 9, 12 – 20 are rejected under 35 U.S.C. 103 as being unpatentable over the non-patent literature of BASF ("Placement of Latex Modified Concrete", 2020), in view of the non-patent literature by Fox Blocks (“8 Tips for Pouring Concrete in Cold Weather”, 2021, “Fox”).
Regarding claim 1. BASF teaches a method of application of a latex modified concrete (“Manual for Placement of Latex Modified Concrete”), the method comprising: creating a false pouring atmosphere at a location for the application of the latex modified concrete (e.g., BASF page 24 point 7 “The mixer shall be capable of spraying water over the entire placement width as it moves ahead to insure that the surface to be overlaid is wet when the LMC is placed.”, and page 25 B. point 4 “Wetting – Bridge Deck: Prior to placement of LMC, the cleaned surface shall be thoroughly wetted for a period not less than one hour, then covered with polyethylene sheeting until time of placement. The surface shall be damp at the time the overlay is placed. Remove any standing water in depressions or holes prior to the application of the overlay.”), the false pouring atmosphere comprising keeping the location moist (see page 24, point 7, page 25, B. “Surface preparation”, point 4);
producing a latex modified concrete mixture at a point of production (e.g., “on site”, see page 22, “Proportioning and Mixing”, point 1 “The mixer shall be self-propelled and have the capability to carry sufficient unmixed dry bulk cement, fi ne aggregate, coarse aggregate, latex emulsion and water in separate compartments, and to produce no less than 6 cubic yards of concrete on site.”, and page 26 C. point 7 “The LMC shall be mixed at the site in a mobile mixer in accordance with the
specified requirements.”);
transporting the latex modified concrete mixture to the point of placement (see page 26 points 7-8);
pouring the latex modified concrete mixture at the point of placement having the false pouring atmosphere (e.g., see page 26 C. Placement and Finishing Procedure); and
maintaining the false pouring atmosphere to allow the latex modified concrete mixture to cure (e.g., see page 27 D. Curing Procedure).
BASF does not explicitly disclose the false pouring atmosphere comprising raising the temperature of a subsurface at the location. BASF, however, disclosed that “The latex concrete mixture shall not be placed at temperatures lower than 40º F. It may be placed at 40º F when rising temperatures are predicted, and then only if the prediction indicates 8 hours over 45º F for the curing period.” (BASF page 28, E. “Placement Limitations”, point 9).
In the same field of endeavor of pouring concrete in inclement weather, Fox discloses that to ensure a successful concrete pour in cold weather, before pouring concrete in cold weather, to prevent shocking the concrete the ground and water must warm and prepare; pre-heat water and aggregates to mix with the cement to 140˚F and 180˚F (60˚C and 82˚C) to offset the cold weather; protect the concrete from wind and weather that may cause quick temperature drops and swift evaporation; monitor the concrete temperature in cold weather; Place concrete as soon as possible after delivery to maintain the heated mix. Obtain a dial pocket thermometer or an infrared thermometer to continually test the concrete temperature, careful to ensure it stays above the required 50°F (10˚C) for the concrete to keep gaining strength — and make sure it does not drop below 40°F (4.5°C) in 24 hours. Keeping a well-defined chart on the air and concrete temperature will help you quickly address any unexpected temperature changes. Heat enclosures used to maintain concrete temperature during hydration and curing must be wind- and water-proof. Be ready with blankets, lights, and supplement heating if the sun sets just as you're ready to start finishing (see Fox “6 tips for Pouring Concrete in Cold Weather”, pages 3-4).
Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the false pouring atmosphere in the method of application a latex modified concrete of BASF to comprise raising the temperature of a subsurface at the location, as suggested by Fox, for the purpose of raising the location false pouring atmosphere temperature to at least and above 40º F and therefore allowing for continuing the pour, since BASF teaches that the latex concrete mixture shall not be placed at temperatures lower than 40º F, and for the purpose of preventing shocking the concrete, since Fox teaches that to prevent shocking the concrete, before pouring concrete the ground and water must warm and prepared. See MPEP 2143(I)(G).
Regarding claim 2. BASF/Fox teaches the method of claim 1, further comprising creating a false production atmosphere at the point of production to produce the latex modified concrete mixture having a UV sensitivity (e.g., BASF discloses erecting temporary windbreaks to reduce wind velocity, keeping a desire temperature for the fresh concrete by regulating the temperatures of the aggregates, mixing water and latex, see page 31, Section IV, point 5, see also pages 22-24, Section III A. “Proportioning and Mixing”, and pages 16-17, E. “Storage, Handling and Sampling of Styrofan 1186”).
Regarding claim 3. BASF/Fox teaches the method of claim 2, wherein the false production atmosphere comprises a controlled temperature in an uncontrolled environment comprising adding hot water to the latex modified concrete mixture to create the false production atmosphere (e.g., Fox pages 3-4 discloses that before pouring concrete in cold weather, you must warm and prepare the ground and water to prevent shocking the concrete, and that Redi-Mix suppliers should pre-heat water and aggregates to mix with the cement to 140˚F and 180˚F (60˚C and 82˚C) to offset the cold weather, and BASF discloses keeping a desire temperature for the fresh concrete by regulating the temperatures of the aggregates, mixing water and latex, see page 31, Section IV, point 5).
Regarding claim 4. BASF/Fox teaches the method of claim 3, further comprising adding 140 to 180 degree Fahrenheit water onto the latex modified concrete mixture while the latex modified concrete mixture is under a covering (e.g., “self-contained, mobile, continuous mixer” BASF page 22 “Proportioning and Mixing”; e.g., Fox pages 3-4 discloses that before pouring concrete in cold weather, you must warm and prepare the ground and water to prevent shocking the concrete, and that Redi-Mix suppliers should pre-heat water and aggregates to mix with the cement to 140˚F and 180˚F (60˚C and 82˚C) to offset the cold weather, see Fox page 6 “A case study in Fairbank, AK”).
Regarding claim 5. BASF/Fox teaches the method of claim 1, wherein the step of maintaining the false pouring atmosphere to allow the latex modified concrete mixture to cure comprises 24-hours (e.g., BASF page 27, D. Curing Procedure, points 1 – 3).
Regarding claim 6. BASF/Fox teaches the method of claim 5, further comprising, after the 24-hours, dry curing the latex modified concrete mixture for another 24-hours (e.g., BASF page 27, D. Curing Procedure, point 4).
Regarding claim 7. BASF/Fox teaches the method of claim 1, further comprising broom finishing the poured latex modified concrete mixture before allowing it to cure (BASF page 26, C. Placement and Finishing Procedure, point 6).
Regarding claim 8. BASF/Fox teaches the method of claim 1, wherein the false pouring atmosphere comprises adding approximately 140 to 180-degree F liquid to the point of placement (e.g., Fox pages 3-4 discloses that before pouring concrete in cold weather, you must warm and prepare the ground and water to prevent shocking the concrete, and that Redi-Mix suppliers should pre-heat water and aggregates to mix with the cement to 140˚F and 180˚F (60˚C and 82˚C) to offset the cold weather).
Regarding claim 9. BASF/Fox teaches a method of application of latex modified concrete (“Manual for Placement of Latex Modified Concrete”), the method comprising:
creating a false production atmosphere by maintaining a temperature-controlled environment and within the temperature-controlled environment is disposed any one of the group consisting of: a latex, a water, and a modifier (e.g., AEA – air entraining agent, BASF page 4, Table 2), a rock, or a sand (e.g., BASF page 24 point 7, page 25 B. point 4; e.g., BASF discloses erecting temporary windbreaks to reduce wind velocity, keeping a desire temperature for the fresh concrete by regulating the temperatures of the aggregates, mixing water and latex, see page 31, Section IV, point 5, see also pages 22-24, Section III A. “Proportioning and Mixing”, and pages 16-17, E. “Storage, Handling and Sampling of Styrofan 1186”);
mixing any of the latex, the water, the modifier, the rock, or the sand, with a latex modified concrete (BASF pages 2-3, B. Role of Latex in Concrete, points 1-4); transporting the latex modified concrete through an environment that is outside a range of 70 and 90 degrees Fahrenheit to a point of placement while maintaining temperature of the latex modified concrete between 70 and 90 degrees Fahrenheit (e.g., BASF discloses that the mixer is “self-contained, mobile” page 22, Proportioning and Mixing; Fox pages 3-4 teaches “pre-heat water and aggregates to mix with the cement to 140˚F and 180˚F (60˚C and 82˚C) to offset the cold weather”, “Protect the workers and concrete from wind and weather that may cause quick temperature drops and swift evaporation”, and “Place concrete as soon as possible after delivery to maintain the heated mix.”);
soaking a point of placement in water to either raise or lower a temperature of the point of placement to between 70 and 90 degrees Fahrenheit (BASF page 25, Surface Preparation, point 4, page 26, Placement and Finishing Procedure point 5, page 28, E. Placement limitations point 9, page 31, Section IV point 5, (b) “Moisten the subgrade to reduce concrete surface temperatures.”); and pouring the latex modified concrete onto the point of placement (BASF page 26 C. Placement and Finishing Procedure).
Regarding claim 12. BASF/Fox teaches the method of claim 9, further comprising covering the poured latex modified concrete with a burlap that has been soaked (BASF page 25, point 7).
Regarding claim 13. BASF/Fox teaches the method of claim 12, further comprising covering the burlap with a plastic (BASF page 25, point 8).
Regarding claim 14. BASF/Fox teaches the method of claim 12, further comprising checking a temperature of the latex modified concrete at least once every half hour for the first five hours after covering the poured latex modified concrete with the burlap (e.g., see BASF page 28, and Fox page 4, point 3 “Carefully Monitor Temperature of Concrete”).
Regarding claim 15. BASF/Fox teaches the method of claim 9, except for further comprising transporting the latex modified concrete via a wheelbarrow. However, the Examiner takes Official notice regarding the well-known, and customary use of wheelbarrows for transporting and delivering concrete mixtures. See MPEP 2144.03.
Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to transport the latex modified concrete via a wheelbarrow, since it have held to be within the ordinary skill of worker in the art to select a known material on the basis of its suitability for the intended use. One would have been motivated to transport the latex modified concrete via a wheelbarrow, as such complies with BASF requirement of the proportioning and mixing equipment being mobile (BASF page 22). See MPEP § 2144.07:
The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Regarding claim 16. BASF/Fox teaches the method of claim 15, further comprising covering the wheelbarrow with plastic (Fox pages 3-4 teaches “Protect the workers and concrete from wind and weather that may cause quick temperature drops and swift evaporation”).
Regarding claim 17. BASF/Fox teaches the method of claim 16, further comprising taking a temperature of the wheelbarrow while the wheelbarrow is transporting the latex modified concrete (e.g., See Fox page 4, 3. Carefully Monitor Temperature of Concrete”).
Regarding claim 18. BASF/Fox teaches the method of transporting latex modified concrete, the method comprising: raising a temperature of an area intentionally refrigerated within a past 24-hours via pouring hot water onto the area; allowing said area to raise to a range between 70 to 90 degrees (e.g., Fox pages 3-4 discloses that before pouring concrete in cold weather, you must warm and prepare the ground and water to prevent shocking the concrete, and that Redi-Mix suppliers should pre-heat water and aggregates to mix with the cement to 140˚F and 180˚F (60˚C and 82˚C) to offset the cold weather, and BASF discloses keeping a desire temperature for the fresh concrete by regulating the temperatures of the aggregates, mixing water and latex, see page 31, Section IV, point 5); removing said hot water (e.g., Fox page 3-4 discloses that before pouring “Remove the ice, snow, and water from the area of the pour.”); transporting the latex modified concrete via a means of transport to the area (BASF page 26 C. Placement and Finishing Procedure; and pouring the latex modified concrete onto the area (e.g., BASF see page 26 C. Placement and Finishing Procedure), except for removing said hot water via a pump.
However, the Examiner takes Official notice regarding the well-known, and customary use of pumps for water removal. See MPEP 2144.03.
Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have remove the hot water with a pump before pouring the latex modified concrete mixture for the purpose of avoiding changing the water-to-binder content of the latex modified concrete, since it have held to be within the ordinary skill of worker in the art to select a known material on the basis of its suitability for the intended use. See MPEP § 2144.07:
The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Regarding claim 19. BASF/Fox teaches the method of claim 18, wherein the means of transport includes a motor buggy (BASF “self-propelled mixer” page 22), wherein the motor buggy has a covering over the latex modified concrete (BASF discloses the mixer is “self-contained” page 22) and the motor buggy travels from a point of production to the area (BASF “self-propelled mixer” page 22).
Regarding claim 20. BASF/Fox teaches the method of claim 18, further comprising broom finishing the latex modified concrete after the latex modified concrete has had 24-hours to cure (BASF page 26, C. Placement and Finishing Procedure, point 6).
Claim(s) 10 is rejected under 35 U.S.C. 103 as being unpatentable over the non-patent literature of BASF ("Placement of Latex Modified Concrete", 2020), in view of the non-patent literature by Fox Blocks (“8 Tips for Pouring Concrete in Cold Weather”, 2021, “Fox”), as applied to claim 9 above, and further in view of Ytterberg et al. (US Pat. No. 5,643,509).
Regarding claim 10. BASF/Fox teaches the method of claim 9, except for, wherein the point of placement is within a food processing facility.
Ytterberg et al., in the same field of endeavor of method for forming a concrete industrial floor slab (Abstract), discloses that “in some industrial floor slab applications, such as in freezers and the like, the floor slab is subjected to relatively large temperature fluctuations, such as between minus 20 °F. and plus 80 °F or higher during cleaning cycles. Although the cycles are infrequent, the stresses to which the floor slab are subjected are significant. Further, floor slabs often require highly finished surfaces to reduce porosity and minimize chemical attack, especially in locations where food and food products are prepared.” (Ytterberg et al. Col. 2, lines 5-14).
Ytterberg et al. discloses that concrete floor toppings such as latex modified concrete may be utilized as concrete floor toppings. (Ytterberg et al. Col. 3, lines 56-61).
Ytterberg et al., similarly to BASF, addresses the use of latex-modified concretes to deal with the problems arising with the use of regular concretes for applications subject to chemical attacks and/or cycles of freeze/thaw, which premature deterioration and failure (e.g., BASF page 1, discloses “An oxidation process creates pressure, causing the concrete to crack. The cycle of cold winter freezes followed by mild temperatures opens the concrete even further. Eventually, the bridge deck crumbles.”).
Furthermore, BASF page 2, discloses that “Latex Modified Concrete (LMC) resists penetration of oil, water, salts and aids in the adhesion of new concrete to old. The flexural strength is improved, and there is increased abrasion resistance.”
Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modify the method of BASF/Fox wherein the point of placement is within a food processing facility, as suggested by Ytterberg et al., for the purpose of providing a concrete floor for locations where food and food products are prepared, as taught by Ytterberg et al., such as a food processing facility with a latex modified concrete floor that resists penetration of oil, water, salts and aids in the adhesion of new concrete to old, and which flexural strength is improved, and there is increased abrasion resistance, as taught by BASF page 2.
Claim(s) 11 is rejected under 35 U.S.C. 103 as being unpatentable over the non-patent literature of BASF ("Placement of Latex Modified Concrete", 2020), in view of the non-patent literature by Fox Blocks (“8 Tips for Pouring Concrete in Cold Weather”, 2021, “Fox”) and Yttergerb et al. (US Pat. No. 5,643,509), as applied to claim 10 above, and further in view of the non-patent literature of Steele et al. (“LMC – VE”, 2019).
Regarding claim 11. BASF/Fox/Ytterberg teaches the method of claim 10, except for, wherein the modifier comprises citric acid, and the citric acid is mixed into the latex modified concrete.
Steele et al., in the same field of endeavor of Latex Modified Concretes with increased durability, bondability and flexibility compared to regular concrete (Steele et al. page 8), discloses the use of a modifier, citric acid, as a retarder mixed into the latex modified concrete (Steele et al. page 11).
Therefore, it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the method of BASF/Fox/Ytterberg so that the composition comprises citric acid as a modifier, and the citric acid is mixed into the latex modified concrete, as suggested and taught by Steele et al., since it have held to be within the ordinary skill of worker in the art to select a known material on the basis of its suitability for the intended use. One would have been motivated to add citric acid as a modifier to serve as a retarder. See MPEP § 2144.07:
The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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NPL A__SECT400.DOC.pdf, "Latex Modified Concrete Prepour Checklist", 2016.
NPL ODLER, IVAN, "SPECIAL INORGANIC CEMENTS", 2000, Taylor & Francis, ISBN 0-419-22790-3, pages 228-231
Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDGAREDMANUEL TROCHE whose telephone number is (571)272-9766. The examiner can normally be reached M-F 7:30-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sam Zhao can be reached at 571-270-5343. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/EDGAREDMANUEL TROCHE/Examiner, Art Unit 1744
/JEFFREY M WOLLSCHLAGER/Primary Examiner, Art Unit 1742