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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Election/Restrictions
Applicant’s election with traverse of Group I, claims 1-4, 9-13 and 22, in the reply filed on 06/25/2026 is acknowledged. The traversal is on the ground(s) that the claims are now amended such that the shared technical feature is special over GYPPAZ. This is not found persuasive because, as amended, the Groups I-III now share the technical feature of the geopolymer material of claim 1, which is not a special technical feature in view of GYPPAZ. GYPPAZ discloses a geopolymer material comprising kaolins calcined at different temperatures, i.e., modified siallite, wherein the modified siallite has an aluminum content of 35 wt% or more and a silicon content of 40 wt% or more, on the basis of the total amount of the modified siallite and in terms of oxide (see GYPPAZ at paragraphs [0001], [0005], [0009]-[0024] and [0147]). While GYPPAZ does not explicitly mention the recited setting times, GYPPAZ teaches a geopolymer material which is identical or substantially identical to the claimed material, and would therefore be expected to have the same or overlapping properties as the claimed material, including initial and final setting time when subjected to the same conditions. MPEP § 2112.01 (I) states that 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, 562 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). MPEP § 2112.01 (II) states that “Products of identical chemical composition cannot have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties Applicant discloses and/or claims are necessarily present. It is noted that all of the new limitations in amended claim 1, other than the geopolymer material comprising calcined kaolin, are considered product-by-process claim language which is not given patentable weight in the present product claim. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985); see MPEP § 2113.
The requirement is still deemed proper and is therefore made FINAL.
Claim(s) 14-19, 21 and 23 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 06/25/2026.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Specification
The abstract of the disclosure is objected to because of the following informality:
The abstract contains a grammatical error at line 5; it appears that “is at least one temperature” should read “under at least one temperature”, or “at a temperature”, etc.
Appropriate correction is required.
Claim Objections
Claims 1, 3, 9-11, 13 and 22 are objected to because of the following informalities:
In claims 1 and 13, there should be spaces between numbers and units; “4mol/L” and “3mol/L” should read “4 mol/L” and “3 mol/L”, respectively (see claim 1 at line 15), and “2-6mol/L”, “1-6mol/L” and “3-7mol/L” should read “2-6 mol/L”, “1-6 mol/L” and “3-7 mol/L”, respectively (see claim 13 at lines 2-4).
In claim 1, “cannot be measured” should read “which cannot be measured” (three occurrences; see claim 1 at lines 8-10).
In claim 3, “the retarder” should read “wherein the retarder” (see claim 3 at line 2).
In claim 9, “geopolymers” should read “the geopolymers” (see claim 9 at line 2).
In claim 10, “comprise” should read “comprises” (see claim 10 at line 2).
In claim 11, “the activator” should read “and wherein the activator” (see claim 11 at line 4).
In claim 22, “comprising” should read “comprises” (two occurrences; see claim 22 at lines 2 and 5).
Appropriate correction is required.
Claim Interpretation
For purposes of claim interpretation, “initial setting time” as recited in claims 1-2 is interpreted as meaning the amount of time it takes for the geopolymer to solidify to a consistency of 100Bc under the corresponding activation conditions, and “initial setting time… cannot be measured” as recited in claim 1 is interpreted as meaning that the geopolymer cannot solidify to a consistency of 100Bc under the corresponding activation conditions, as this would appear most in keeping with Applicant’s intent as discussed in the Specification at pg. 9, lines 10-11 and pg. 15, lines 10-15.
For purposes of claim interpretation, “final setting time” as recited in claims 1-2 is interpreted as meaning the amount of time it takes for the geopolymer to solidify to a strength of 3.5 MPa under the corresponding activation conditions, and “final setting time… cannot be measured” as recited in claim 1 is interpreted as meaning that the geopolymer cannot solidify to a strength of 3.5 MPa under the corresponding activation conditions, as this would appear most in keeping with Applicant’s intent as discussed in the Specification at pg. 9, lines 11-13 and pg. 15, lines 16-20.
For purposes of examination, “wt%” as recited in claim 4 (see claim 4 at line 2) is interpreted as meaning dry weight percent (i.e., excluding water), as this would appear most in keeping with Applicant’s intent as discussed in the specification at pg. 8, lines 12-18, which refers to this wt% as being before the addition of an activator.
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 1-4, 9-13 and 22 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 "A geopolymer material comprising a modified siallite… wherein the geopolymer material comprises at least two of a first geopolymer, a second geopolymer, a third geopolymer and a fourth geopolymer… the first geopolymer, the second geopolymer, the third geopolymer and the fourth geopolymer are kaolin" (see claim 1 at lines 1, 6-7 and 17-18); it is not clear from this language whether the recited first/second/third/fourth geopolymers are meant to be the same material as the previously recited “modified siallite”, or are meant to be a separate, additional material, as the geopolymers are kaolin and kaolin is a modified siallite but there is no indication that the modified siallite and geopolymers/kaolin are the same materials. Claim 1 also recites setting times for the geopolymers, ending with “hours; the fourth geopolymer has an initial setting time… and a final setting time of 3 hours or more and less than 15 hours, under the activation conditions consisting of using an aqueous solution comprising sodium hydroxide…” (see claim 1 at lines 7-16); it is not clear from this language whether the recited activation conditions apply to only the fourth geopolymer, as seems to be indicated as currently written, or whether they are meant to apply to all four of the recited geopolymers, further rendering the scope of the claim indefinite.
For purposes of examination, Examiner treated the recited geopolymers as being the same material as the “modified siallite” rather than separate materials, i.e., the limitation is treated as meaning that the modified siallite comprises kaolin. Clarification is requested. Examiner also treated the activation conditions as applying to all four geopolymers rather than just the fourth; however, it is noted that all of these limitations which refer to process conditions of forming the claimed material rather than being limitations of the actual finished claimed material are product-by-process claim language and are not given patentable weight in the present product claims. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985); see MPEP § 2113.
Claim 2 recites the limitation “wherein the geopolymer material has an initial setting time of 5-10 hours and a final setting time of 7-12 hours under at least one temperature within the ranges of 70-100°C, 100-150°C, 150-200°C, 200-250°C, or 250-300°C; and/or, a difference value between the final setting time and the initial setting time of the geopolymer material is within a range of 1-5 hours” (see claim 2 at lines 1-5). These temperature and setting time limitations are already recited in and required by claim 1, from which claim 2 depends; however, in claim 2 these limitations are optional, as indicated by the use of “and/or”. It is not clear whether the setting time limitations are actually required, as indicated in claim 1, or are meant to be optional, as indicated by claim 2, rendering the scope of the claim indefinite.
For purposes of examination, Examiner treated claim 1 as requiring the conditions recited by claim 1 and treated the limitation after “and/or” as being optional; i.e., any material meeting the limitations of claim 1 also meets the limitations of claim 2. Clarification is requested.
Claim 3 recites the limitation “the geopolymer material does not contain a retarder, the retarder is one or more selected from the group consisting of lignosulfonate and derivatives thereof, saccharides and derivatives thereof, boric acid and salts thereof, phosphoric acid and salts thereof, phosphonic acid and salts thereof, acrylic polymer, citric acid and salts thereof, tartaric acid and salts thereof, zinc salts, alkaline earth metal salts and inorganic sulphate salts” (see claim 3 at lines 2-6); the scope of this claim cannot be ascertain as it is not clear whether the geopolymer material does not contain any retarder, as indicated by “the geopolymer material does not contain a retarder”, or can include a retarder as long as it is not one of the specifically recited components, or can even include the recited components as long as “one or more selected from” the recited list is excluded. The use of the language “the retarder is one or more selected of” also makes it unclear whether the material is actually supposed to contain a retarder rather than exclude one.
For purposes of examination, Examiner treated claim 3 as though it just recites “the geopolymer material does not contain a retarder”. Clarification is requested.
Claim 10 recites the limitation “wherein the geopolymer material comprise any one of the following geopolymers in terms of parts by weight” (see claim 10 at lines 1-2), but then lists combinations of multiple geopolymers grouped together, e.g., “(1) 70-80 pars of a third geopolymer and 70-80 parts of a fourth geopolymer”. It is not clear from this language whether the claim only requires one geopolymer, as indicated by “any one of”, or actually requires more than one geopolymers in the recited weight percentages, as indicated by the groupings of geopolymers. The claim also does not indicate what the “parts by weight” are based on, e.g., if they are meant to be based on some total number of parts of the geopolymer material, or if the parts by weight are based only on the total weight parts of the recited combination, etc. It is also unclear what would differentiate “a third geopolymer”, “a fourth geopolymer”, “a second geopolymer”, and “a first geopolymer” from each other, as the use of “a” rather than “the” indicates that these can be any geopolymers and do not refer to the previously recited first, second, third and fourth geopolymers of claim 1. In claim 10 as written it is not clear how the material could comprise, e.g., a third and fourth geopolymer without also comprising a first and second.
For purposes of examination, Examiner treated claim 10 as though it requires that the geopolymer material comprises any one of the recited geopolymer combinations (1)-(8), as though the recited geopolymers refer to the geopolymers of claim 1, and as though the parts by weight are based on the total weight parts of the recited combination of geopolymers. Clarification is requested.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 22 recites the broad recitation “the activator comprising one or more selected from the group consisting of sodium hydroxide, potassium hydroxide, sodium silicate, potassium silicate, sodium carbonate, potassium carbonate, sodium polyphosphate and potassium polyphosphate”, and the claim also recites “the activator comprising sodium hydroxide and sodium silicate, or sodium silicate and sodium polyphosphate” which is the narrower statement of the range/limitation; the broad limitation reciting “one or more selected from” already includes combinations of sodium hydroxide/sodium silicate and sodium silicate/sodium polyphosphate. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claims 4, 9 and 11-13 are included herein as each depends from a claim which is indefinite for reasons set forth above.
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 2 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 2 is dependent on claim 1, which recites the limitation “the geopolymer material has an initial setting time of 5-10 hours and a final setting time of 7-12 hours under at least one temperature within a range of 70-300°C” (see claim 1 at lines 3-5), i.e., these conditions are required. Claim 2 recites the further limitation “wherein the geopolymer material has an initial setting time of 5-10 hours and a final setting time of 7-12 hours under at least one temperature within the ranges of 70-100°C, 100-150°C, 150-200°C, 200-250°C, or 250-300°C; and/or, a difference value between the final setting time and the initial setting time of the geopolymer material is within a range of 1-5 hours” (see claim 2 at lines 1-5); the recited temperature ranges is exactly the same as the claim 1 range of 70-300°C, and the use of “and/or” means that these conditions are optional, even though they are required in claim 1. Therefore, claim 2 is of improper dependent form as it fails to include all the limitations and/or further limit the subject matter of claim 1 on 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.
Claims 1-4, 9-13 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Gyppaz, et al. (EP-3670471-A1) (hereinafter, “GYPPAZ”; citations herein refer to the machine translation provided by Applicant), with evidence from OxyChem® Silicates, “Liquid Sodium Silicate Grade 50” (hereinafter, “OXYCHEM”) as to the rejection of claims 12-13.
Regarding claims 1-2, GYPPAZ teaches a geopolymer material comprising a modified siallite (see GYPPAZ at generally at paragraphs [0001] and [0005], teaching a geopolymer composition comprising at least two kaolins, which is a modified siallite),
wherein the modified siallite has an aluminium content of 35wt% or more and a silicon content of 40wt% or more, on the basis of the total amount of the modified siallite and in terms of oxide (see GYPPAZ at paragraphs [0009]-[0024] and [0147], teaching that both metakaolins are at least 30 mol% alumina and at least 45 mol% silica, and have a molar ratio of silica/alumina of, e.g., 55/41; the molar masses of SiO2 and Al2O3, respectively, are 60.08 g/mol and 101.96 g/mol, therefore a molar ratio of 55/41 corresponds to a mass ratio of (55/41)X(60.08/101.96), or a silica/alumina mass ratio of 0.79:1, i.e., approximately 44 wt% silica and 56 wt% alumina);
wherein the modified siallite is calcined kaolin (see GYPPAZ at paragraph [0001]).
GYPPAZ does not explicitly mention that the geopolymer material has an initial setting time of 5-10 hours and a final setting time of 7-12 hours under at least one temperature within a range of 70-300°C; however, GYPPAZ discloses a geopolymer material which is identical or substantially identical to the claimed geopolymer material, therefore the geopolymer material of GYPPAZ would be expected to have the same or overlapping properties as the claimed material, including initial/final setting times when exposed to the same activation conditions. MPEP § 2112.01 (I) states that 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, 562 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). MPEP § 2112.01 (II) states that “Products of identical chemical composition cannot have mutually exclusive properties.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties Applicant discloses and/or claims are necessarily present. The USPTO does not possess the laboratory facilities to test the properties of the referenced product. However, in light of the reference's disclosure as discussed herein, it appears the claimed invention and that of GYPPAZ have the same or very similar properties. Thus, the burden shifts to Applicant to demonstrate otherwise.
The present claims are not directed to a process of making a geopolymer material; they are directed to a finished geopolymer material product. It is noted that all of the limitations which refer to process conditions of forming the claimed material rather than being limitations of the actual finished claimed material (i.e., lines 6-18 of claim 1, reciting calcining temperatures and setting times under specific activation conditions for individual components in a process for making a geopolymer material, before the geopolymer material is made) are considered product-by-process claim language and are not given patentable weight in the present product claims. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985); see MPEP § 2113.
Further, although not required to meet the recited structural limitations of the claimed material, it is noted that GYPPAZ discloses using at least two kaolins calcined at different temperatures (see GYPPAZ at paragraphs [0001], [0009]-[0010] and [0019]-[0020]); as discussed above, GYPPAZ discloses a geopolymer material which is identical or substantially identical to the claimed geopolymer material, therefore the geopolymer material of GYPPAZ would be expected to have the same or overlapping properties as the claimed material.
Regarding claim 3, as applied to claim 1 above, GYPPAZ teaches a geopolymer material according to claim 1, wherein the geopolymer material does not contain a retarder (GYPPAZ discloses geopolymer materials which do not include retarder; see GYPPAZ at paragraph [0043], teaching that setting retardants are optional additives and are not required).
Regarding claim 4, as applied to claim 1 above, GYPPAZ teaches a geopolymer material according to claim 1, wherein the content of modified siallite in the geopolymer material is 55wt% or more; and/or, an XRD spectrogram of the geopolymer material illustrates a crystalline characteristic peak and an amorphous characteristic peak when 20 is within a range of 15-300; and/or, the geopolymer material has a Si dissolution ratio greater than 0.2 (see GYPPAZ at paragraph [0005], disclosing a mixture of a first and second metakaolin, which is a geopolymer material, i.e., a geopolymer material which is 100 wt% modified siallite; see GYPPAZ at paragraphs [0005], [0028], [0034]-[0035] and [0053]-[0055], teaching a slurry comprising, by weight, 5-50% modified siallite, 5-60% of an alkali silicate, and the balance water, wherein the total solids content (metakaolin and alkali silicate) is 35-80%; this includes geopolymer materials having 55wt% or more of siallite as claimed, e.g., for a mixture of 30% metakaolin, 20% alkali silicate and 50% water, the dry geopolymer material comprises 60 wt% modified siallite).
Additionally, as discussed in the rejection of claim 1 above, GYPPAZ discloses a geopolymer material which is identical or substantially identical to the claimed geopolymer material, therefore the geopolymer material of GYPPAZ would be expected to have the same or overlapping properties as the claimed material; see MPEP § 2112.01.
As set forth in MPEP § 2144.05, 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)).
Regarding claim 9, as applied to claim 1 above, GYPPAZ teaches a geopolymer material according to claim 1. The present claims are not directed to a process of making a geopolymer material; they are directed to a finished geopolymer material product. The recitations in claim 9 of calcination temperatures for different geopolymers and calcination time is considered product-by-process claim language and is not given patentable weight in the present product claim. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985); see MPEP § 2113.
Further, although not required to meet the recited structural limitations of the claimed material, it is noted that GYPPAZ explicitly discloses the claimed calcination temperatures and times (see GYPPAZ at paragraphs [0001], [0009]-[0010], [0016], [0019]-[0020] and [0026], disclosing a first calcination temperature of 700-875°C and second calcination temperature of 800-1200°C, and a calcination time of , e.g., 0.5 to 8 hours, or up to 2 hours).
Regarding claim 10, as applied to claim 1 above, GYPPAZ teaches a geopolymer material according to claim 1, wherein the geopolymer material comprises, e.g., 70 parts of one kaolin and 70 parts of a different kaolin based on the total weight of the two kaolins (see GYPPAZ at paragraph [0027], teaching a mass ratio of the first to second metakaolin of 0.1 to 2, e.g., 1); as discussed in the rejection of claim 1, the recitations regarding the first, second, third and fourth geopolymers of claim 1 are considered product-by-process claim language and are not given patentable weight in the present product claims. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985); see MPEP § 2113. As set forth in MPEP § 2144.05, 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)).
Regarding claim 11, as applied to claim 1 above, GYPPAZ teaches a geopolymer material according to claim 1, wherein the geopolymer material further comprises an activator comprising one or more selected from the group consisting of a soluble hydroxide, a soluble silicate, a soluble carbonate and a soluble polyphosphate (see GYPPAZ at paragraphs [0001], [0032] and [0035], teaching an alkaline base such as sodium hydroxide or potassium hydroxide, and alkaline silicates such as sodium and/or potassium silicates).
It is noted that the recitation of “the activator and the modified siallite are stored separately and mixed when in use” is product-by-process claim language which is not given patentable weight in the present product claims. The claims are not directed to a method of making a geopolymer material or a method of storing ingredients; they are directed to a finished geopolymer material. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985); see MPEP § 2113.
Regarding claims 12-13, as applied to claim 11 above, GYPPAZ teaches a geopolymer material according to claim 11, wherein the activator in a form of aqueous solution with a concentration of 0.5-10 mol/L is mixed with the modified siallite, as recited by claim 12, and the solution of the activator comprises a soluble silicate with a concentration of 1-6 mol/L, as recited by claim 13 (see GYPPAZ at paragraph [0147], teaching a 50 wt% solution of aqueous sodium silicate with a SiO2/Na2O molar ratio of about 2.0, which has a molar mass of 182.14 g/mol (61.98 g/mol Na2O + 2 X 60.08 g/mol SiO2), and which has a specific gravity of about 1.52, as evidenced by OXYCHEM (see OXYCHEM at pg. 1); i.e., the solution has a density of about 1,520 g/L, and the molarity is about 4.2 mol/L ([1,520 g/L X 0.5] / 182.14 g/mol)).
Regarding claim 22, as applied to claim 11 above, GYPPAZ teaches a geopolymer material according to claim 11, wherein the activator comprises one or more selected from the group consisting of sodium hydroxide, potassium hydroxide, sodium silicate, potassium silicate, sodium carbonate, potassium carbonate, sodium polyphosphate and potassium polyphosphate (see GYPPAZ at paragraphs [0001], [0032] and [0035], teaching an sodium hydroxide, potassium hydroxide, sodium silicate and potassium silicate).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARAH CATHERINE CASE whose telephone number is (703)756-5406. The examiner can normally be reached M-Th 7:00 am - 5:00 pm EST.
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/S.C.C./Examiner, Art Unit 1731
/ANTHONY J GREEN/Primary Examiner, Art Unit 1731
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