DETAILED ACTION
Election/Restrictions
Applicant's election with traverse of claims 1-15 in the reply filed on 08/28/2026 is acknowledged. The traversal is on the ground(s) that the examination of all of the claims is not believed to create an undue burden on the USPTO and that the subject matter among the groups is not independent and distinct. This is not found persuasive because, as was discussed in the Requirement for Restriction/Election mailed on 06/29/2026, the invention have acquired a separate status in the art in view of their different classifications.
The requirement is still deemed proper and is therefore made FINAL.
Claim Objections
Claims 2-3 and 11 are objected to because of the following informalities:
in claim 2, line 2, “pull force is at least” should read “pull force of at least”,
in claim 3, line 2, “pull force is at least” should read “pull force of at least”,
in claim 11, line 1, “alkyl” should read “alkyl”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 6 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 6 is dependent upon claim 1 and recites “the construction material has a D50p of at least 150 microns”, while claim 1 recites “D50p of at least 200 microns”. Thus, claim 6 fails to further limit the subject matter of the claim upon which it depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 and 10-13 are rejected under 35 U.S.C. 103 as being unpatentable over Lidgard et al. (WO 2011078708 A1), hereinafter referred to as LIDGARD.
Regarding claim 1, LUDGARD teaches a plaster-based construction material (see LUDGARD at paragraph 4, p. 1: plaster board) comprising:
a gypsum plaster material (see LUDGARD at paragraph 5, p. 1: gypsum plaster); and
at least 1 part by weight biochar per 100 parts by weight gypsum (see LUDGARD at paragraph 5, p. 2: the dry mass proportion of the plasterboard mixture are 1.5-2.5 parts gypsum plaster and 0.01-1.5 parts charcoal powder; and paragraph 2, p. 13: the charcoal is preferably wood charcoal produced by carbonation of wood, but could also include various types of biochar). LUDGARD teaches at least 0.4 to 60 parts by weight charcoal per 100 parts by weight gypsum plaster, which overlaps and renders obvious the claimed range.
It is noted, that according to MPEP § 2111, the proper claim interpretation includes giving claims their broadest reasonable interpretation in light of the specification. LUDGARD discloses plasterboard compositions that are very similar to the present application. LUDGARD teaches composition comprising gypsum plaster, the charcoal powder, water, foaming agent (see LUDGARD at paragraphs 1-3, p. 2), and further comprising additives including starches, plasticizer, accelerator and retarder (see LUDGARD at paragraph 7, p. 32 – paragraph 1, p. 33). Thus, one of ordinary skill in the art would have anticipated the gypsum board of LUDGARD to comprise the claimed properties such as a nail pull force according to ASTM C473 Method B of at least 51 lbf or a core hardness according to ASTM C473 Method B of at least 66 N. See 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”.
Regarding claim 10, LUDGARD teaches the construction material of claim 1, further comprising a foaming agent (see LUDGARD at paragraph 4, p. 18: the added foaming agent is preferably (and typically) sodium lauryl sulphate).
Regarding claim 11, LUDGARD teaches the construction material of claim 10, wherein the foaming agent comprises an alkyl ether sulfate blend or an ammonium salt of a sulfated linear alcohol ethoxylate (see LUDGARD at paragraph 3, p. 19: examples of foaming agents that can be used by the present invention include: sodium lauryl sulfate, sodium lauryl ether sulfate, alpha-olefin sulfonates, alkali, ammonium or emanolamine salts of sulfuric esters of hydroxyalkylated alcohols or hydroxyalkylated alkyl phenols, various salts of alkyl ethoxy sulfates).
Regarding claim 12, LUDGARD teaches the construction material of claim 10, wherein the foaming agent comprises sodium lauryl sulfate (see LUDGARD at paragraph 4, p. 18: the added foaming agent is preferably (and typically) sodium lauryl sulphate).
Regarding claim 13, LUDGARD teaches the construction material of claim 10, wherein the foaming agent comprises an ammonium salt of a sulfated linear alcohol ethoxylate (see LUDGARD at paragraph 3, p. 19: examples of foaming agents that can be used by the present invention include: sodium lauryl sulfate, sodium lauryl ether sulfate, alpha-olefin sulfonates, alkali, ammonium or emanolamine salts of sulfuric esters of hydroxyalkylated alcohols or hydroxyalkylated alkyl phenols, various salts of alkyl ethoxy sulfates).
Claims 1-10 and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Vilinska et al. (US 20230002278 A1), hereinafter referred to as VILINSKA, in view of Boumaaza et al. (Optimization of flexural properties and thermal conductivity of Washingtonia plant biomass waste biochar reinforced bio-mortar. Journal of Materials Research and Technology, 2023, 23: 3515-3536), hereinafter referred to as BOUMAAZA.
Regarding claim 1, VILINSKA teaches a plaster-based construction material (see VILINSKA at Abstract: a gypsum board; the set gypsum core including a gypsum crystal matrix formed from at least water, stucco, and a foam) comprising:
a gypsum plaster material (see VILINSKA at paragraph [0012]: stucco); and
wherein the construction material comprises at least one of the following:
a nail pull force according to ASTM C473 Method B of at least 51 lbf (see VILINSKA at paragraph [0106]: the board has a nail pull resistance of at least about 65 lbf);
a core hardness according to ASTM C473 Method B of at least 66 N (see VILINSKA at paragraph [0108]: board can have a core hardness of from about 11 lbf/49 N to about 25 lbf/111 N);
a median pore size, D50p of at least 200 microns (see VILINSKA at paragraph [0056]: an average air void diameter of at least about 200 microns in diameter); or
a 90th percentile pore size, D90p of at least 750 microns (see VILINSKA at paragraph [0059]: a significant void volume contributed by large voids, i.e., having a diameter of at least about 100 microns; at least about 90% of the total void volume of the set gypsum core). VILINSKA teaches ranges which overlap and render obvious the claimed ranges. 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. See MPEP §2144.05(I).
While VILINSKA is silent with respect to the disclosed gypsum board comprising at least 1 part by weight biochar per 100 parts by weight gypsum, the addition of biochar to the gypsum-based construction material is known in the art, as evidenced from the disclosure of BOUMAAZA. BOUMAAZA discloses that biochar has the potential to be incorporated in construction materials for its specific characteristics and environmental advantages that it offers; BOUMAAZA also describes the development of a novel biomortar biochar-reinforced plaster products obtained by pyrolysis of Washingtonia plant biomass biochar (WPBB) (see BOUMAAZA at Abstract). BOUMAAZA teaches that plaster samples with biochar were produced to provide a more flexural resistant building material; and that the study of the effect of adding biochar in the proportions of 1%, 2% and 3% by mass pyrolyzed at 300 °C, 400 °C and 500 °C on the flexural strength, and displacement was conducted (see BOUMAAZA at 2. Materials and methods, p. 3517). BOUMAAZA also teaches that the biochar reinforced plaster results in insulating and ventilating interior plasters capable of maintaining the required degree of humidity, thus, ensures the prevention not only of sparse air, leading to breathe disturbances and causing irritation, but also of humid conditions due to condensation of air on the exterior walls, causing the development of moisture; biochar provides enhanced flexural strength of gypsum bio-mortar and better thermal behavior; as a porous material, biochar can be used to remedy moisture and thermal problems as well as contributing to saving energy consumption in construction projects biochar can be used to remedy moisture and thermal problems as well as contributing to saving energy consumption in construction projects. Additionally, BOUMAAZA teaches that the 2% biochar content improved the ductility plaster/biochar and that bio-bending mortar's strength was increased by 90% with the addition of 2% biochar (see BOUMAAZA at 4. Conclusion, left column, p. 3534).
One of ordinary skill in the art would have recognized the potential benefit of improving the gypsum board of VILINSKA by adding 1-3 wt% of biochar as disclosed by BOUMAAZA since BOUMAAZA explicitly teaches biochar can be used to remedy moisture and thermal problems, thus, contributing to saving energy consumption in construction projects (biochar can be used to remedy moisture and thermal problems as well as contributing to saving energy consumption in construction projects), as well as improve the ductility and increase strength (see BOUMAAZA at 4. Conclusion, left column, p. 3534).
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 modified the gypsum board of VILINSKA by adding 1-3 wt% of biochar disclosed by BOUMAAZA in order to improve the ductility and increase strength of the gypsum board.
According to MPEP §2141.03(I) “the level of disclosure in the specification of the application under examination or in relevant references may also be informative of the knowledge and skills of a person of ordinary skill in the art”, therefore, the Examiner asserts what an ordinary artisan would know in light of the disclosure in the specification provided by the Applicant. According to the specification, Tables 2, 4 and 6, addition of biochar resulted in the increase of the claimed properties, such as nail pull force, core hardness and a pore size. Furthermore, the biochar disclosed by BOUMAAZA (see BOUMAAZA at 2. Materials and methods, p. 3517: pyrolyzed at 300 °C, 400 °C and 500 °C) is prepared by the method very similar to the one described by the Applicant (see Specification, paragraph [0019]: the biochar can be prepared by the pyrolysis of at least 300°C). Therefore, one of ordinary skill in the art would have anticipated the gypsum board of VILINSKA upon addition of 1-3 wt% of biochar as disclosed by BOUMAAZA to have improved properties disclosed by VILINSKA, e.g., increase in nail pull force, core hardness and average void diameter.
Regarding claim 2, VILINSKA as modified by BOUMAAZA teaches the construction material of claim 1, wherein the construction material has an average nail pull force is at least 51 lbf or at least 52 lbf or at least 53 lbf or at least 54 lbf or at least 55 lbf (see VILINSKA at paragraph [0106]: the board has a nail pull resistance of at least about 65 lbf). VILINSKA teaches range which overlaps and renders obvious the claimed range.
Regarding claim 3, VILINSKA as modified by BOUMAAZA teaches the construction material of claim 1, wherein the construction material has an average nail pull force is less than 170 lbf or less than 160 lbf or less than 150 lbf or less than 140 lbf or less than 130 lbf or less than 120 lbf or less than 110 lbf or less than 100 lbf or less than 90 lbf or less than 80 lbf or less than 70 lbf or less than 60 lbf see VILINSKA at paragraph [0106]: the board has a nail pull resistance from about 70 lbf to about 100 lbf). VILINSKA teaches range which overlaps and renders obvious the claimed range.
Regarding claim 4, VILINSKA as modified by BOUMAAZA teaches the construction material of claim 1, wherein the construction material has an average core hardness of at least 66 N or at least 67 N or at least 67.5 N or at least 68 N or at least 68.5 N or at least 69 N or at least 69.5 N or at least 70 N or at least 72 N or at least 74 N or at least 76 N or at least 78 N or at least 80 N or at least 82 N or at least 84 N or at least 85 N (see VILINSKA at paragraph [0108]: board can have a core hardness of from about 11 lbf/49 N to about 25 lbf/111 N). VILINSKA teaches range which overlaps and renders obvious the claimed range.
Regarding claim 5, VILINSKA as modified by BOUMAAZA teaches the construction material of claim 1, wherein the construction material has an average core hardness of less than 160 N or less than 150 N or less than 140 N or less than 130 N or less than 120 N or less than 110 N or less than 100 N or less than 90 N or less than 80 N (see VILINSKA at paragraph [0108]: board can have a core hardness of from about 11 lbf/49 N to about 25 lbf/111 N). VILINSKA teaches range which overlaps and renders obvious the claimed range.
Regarding claim 6, VILINSKA as modified by BOUMAAZA teaches the construction material of claim 1, wherein the construction material has a D50p of at least 150 microns or at least 200 microns or at least 250 microns or at least 300 microns or at least 350 microns or at least 400 microns (see VILINSKA at paragraph [0056]: an average air void diameter of at least about 200 microns in diameter, or at least about 250 microns in diameter, or at least about 350 microns in diameter). VILINSKA teaches ranges which overlap and render obvious the claimed ranges.
Regarding claim 7, VILINSKA as modified by BOUMAAZA teaches the construction material of claim 1, wherein the construction material has a D50p of less than 1000 microns (see VILINSKA at paragraph [0056]: an average air void diameter of at least about 200 microns in diameter). VILINSKA teaches range which overlaps and renders obvious the claimed range.
Regarding claim 8, VILINSKA as modified by BOUMAAZA teaches the construction material of claim 1, wherein the construction material has a D90p of at least 750 microns or at least 800 microns or at least 850 microns or at least 900 microns or at least 950 microns or at least 1000 microns or at least 1050 microns or at least 1100 microns or at least 1150 microns or at least 1200 microns (see VILINSKA at paragraph [0059]: a significant void volume contributed by large voids, i.e., having a diameter of at least about 100 microns; at least about 90% of the total void volume of the set gypsum core). VILINSKA teaches range which overlaps and renders obvious the claimed ranges.
Regarding claim 9, VILINSKA as modified by BOUMAAZA teaches the construction material of claim 1, wherein the construction material has a D50p of less than 10000 microns (see VILINSKA at paragraph [0056]: an average air void diameter of at least about 200 microns in diameter). VILINSKA teaches range which overlaps and renders obvious the claimed range.
Regrading claim 10, VILINSKA as modified by BOUMAAZA teaches the construction material of claim 1, further comprising a foaming agent (see VILINSKA at paragraph [0009]: the foam is generated through the use of three surfactants; a surfactant or foaming agent).
Regarding claim 14, VILINSKA as modified by BOUMAAZA teaches the construction material of claim 1, wherein the construction material is 1-hour fire rated per ASTM E119 (see VILINSKA at paragraph [0098]: gypsum board is configured to meet or exceed a fire rating pursuant to the fire containment and structural integrity requirements of the wallboard industry. Examples of fire rating assemblies known in the art are UL U305, U419 and U423. Other equivalent fire test procedures and standards, e.g., in which the board contains fire resistant additives discussed herein are also known in the art. The present disclosure thus provides gypsum board (e.g., reduced weight and density at thickness of ½ inch or ⅝ inch), and methods for making the same, that are capable of satisfying fire ratings (e.g., 17 min., 20 min., 30 min., 3/4 hour, one-hour, two-hour, etc.) pursuant to the fire containment and structural integrity procedures and standards of various UL assemblies).
Regarding claim 15, VILINSKA as modified by BOUMAAZA teaches the construction material of claim 1. While VILINSKA as modified by BOUMAAZA is silent with respect to the construction material being rated for 2 hours total water absorption per ASTM C473 Method B, VILINSKA as modified by BOUMAAZA teaches construction material comprising composition very similar to the present application. Furthermore, VILINSKA discloses gypsum board meeting test protocols according to ASTM C473-10, such as core hardness, nail pull force, flexural strength (see VILINSKA at paragraphs [0106-107]). Thus, one of ordinary skill in the art would have anticipated the gypsum board of VILINSKA as modified by BOUMAAZA to comprise the claimed properties such as being rated for 2 hours total water absorption per ASTM C473 Method B. See 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”.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Zeng et al. (CN 115784702 A) discloses a method for preparing carbon-negative gypsum-based biochar thermal insulation plaster board (see provided machine translation, paragraph [0003]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANASTASIA KUVAYSKAYA whose telephone number is (703)756-5437. The examiner can normally be reached Monday-Thursday 7:00am-5:00pm.
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/ANASTASIA A. KUVAYSKAYA/Examiner, Art Unit 1731
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