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 .
Response to Preliminary Amendment
The preliminary amendment submitted on 20 March 2024 has been entered. After entry of the amendment, claims 1-20 are currently pending in the application.
Specification
The disclosure is objected to because of the following informalities: There is no “Brief Description of The Drawings” found in the specification.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 1-20 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 is vague and indefinite as it defines a component by its function namely a “viscosity enhancing admixture”. This renders the scope of the claim unclear as it is known that a clay can act as a viscosity enhancing admixture in cementitious materials and therefore a clay would meet both the clay component and the viscosity enhancing admixture component of the composition. Claims in which one component is defined so broadly that it reads on a second, fail to meet the requirements of the second paragraph of 35 USC 112. See Ex parte Ferm et al 162 USPQ 504.
In claim 4, the phrase “the dry cementitious mixture” lacks proper antecedent basis.
In claim 5, the scope of the claim is unclear and therefore vague and indefinite due to the use of both “comprises or consist of” as “comprises” opens the claim to the addition of other components whereas “consist of” closes the claim only to the recited components.
In claim 10, the scope of the claim is unclear and therefore vague and indefinite due to the use of both “comprises or consists of” as “comprises” opens the claim to the addition of other components whereas “consists of” closes the claim only to the recited components.
In claim 14, the phrase “obtainable by” is indefinite as the phrase is not a positive claim limitation. Either the composition is obtained by mixing or it isn’t. Clarification is requested.
Claim 17 is vague and indefinite as it is unclear as this claim depends ultimately from claim 1 which recites a dry cementitious material that comprises a viscosity enhancing admixture and a clay and therefore it is unclear as to how a dry cementitious material mixture not containing these components can be used.
Claim Rejections - 35 USC § 112(d)
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 17 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. Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements.
This claim fails to further limit claim 15 and ultimately claim 1, as claim 1 recites a dry cementitious material that comprises a viscosity enhancing admixture and a clay and therefore applicant cannot later claim that these components are not present in the material.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 (or as subject to pre-AIA 35 U.S.C. 102) 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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-2, 4-6, 8, and 11-14 are rejected under 35 U.S.C. 102(a) as being anticipated by Germany Patent Specification No. 20304239 U1.
The reference teaches, in example 2:
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The instant claims are met by the reference.
As for claim 1, Cement CEM I 32.5 R and Cement CEM I 52.5 R meets the hydraulic cement, the bentonite meets the clay component and the methycellulose meets the viscosity enhancing admixture. The amount of the methylcellulose based on the cement is 0.06% and the amount of the bentonite is 0.16% and these amounts fall within the claimed ranges.
As for claim 2, the Cement CEM I 32.5 R and Cement CEM I 52.5 R are types of Portland cement.
As for claim 4, no accelerator is present in the compositions.
As for claim 5, the methylcellulose is a modified polysaccharide.
As for claim 6, the reference teaches bentonite.
As for claim 8, the reference teaches polycarboxylate ether which is a superplasticizer.
As for claim 11, the reference teaches both sand and expanded clay having a size of up to 4 mm.
As for claim 12, the reference teaches sand having a size of up to 4 mm.
As for claim 13, the cement is present in an amount of 31% which falls within the claimed range.
As for claim 14, the composition is mixed with water.
Claims 1, 3-12, 14-16 and 18-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by PCT International Patent Publication No. WO 2019/089771 A1 as evidenced by Luna et al “The Importance of Elkem Microsilica® in Refractory Castables” with respect to claims 9 and 10.
The reference teaches, in Table 4, mix 5, a fresh mortar comprising hydraulic cement (a blend of Portland cement type I with calcium aluminate cement), a viscosity enhancing admixture (hydroxypropyl methylcellulose) and a clay (attapulgite) wherein the at least one viscosity enhancing admixture is present in an amount of 0.4 wt.-%, based on the hydraulic cement and the clay is present in an amount of 0.5 wt.-% based on the hydraulic cement.
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The instant claims are met by the reference.
As for claim 1, the reference teaches Portland cement and Calcium aluminate cement which meets the hydraulic cement, attapulgite nanoclay which meets the clay component and hydroxypropylmethylcellulose which meets the viscosity enhancing admixture. The amounts of the attapulgite nanoclay (0.5 wt.-%) and the hydroxypropylmethylcellulose (0.4 wt.-%), fall within the claimed ranges.
As for claim 3, the reference teaches a mixture of Portland cement and calcium aluminate cement.
As for claim 4, the reference does not teach the addition of an accelerator.
As for claim 5, the reference teaches hydroxypropylmethylcellulose which meets the modified polysaccharide.
As for claim 6, the reference teaches attapulgite.
As for claim 7, the reference teaches PVA fibers.
As for claim 8, the reference teaches a high range water reducing agent which is also known as a superplasticizer.
As for claim 9, the reference uses Elkem Microsilica as the type of microsilica and according to Luna et al the average particle size is 0.15 microns.
As for claim 10, the reference teaches microsilica.
As for claim 11, the sand meets this limitation as F-75 sand has a size that falls within the claimed range (see paragraph [0090]).
As for claim 12, the sand meets this limitation as F-75 sand has a size that falls within the claimed range (see paragraph [0090]).
As for claim 14, the composition is mixed with water.
As for claim 15, paragraphs [0112]-[0113], example 1, and claims 23-24, that the composition in its fresh state is passed through an aperture to deposit the cementitious composition onto a target.
As for claim 16, this is met by example 1, as well as paragraphs [0112]-[0113] and claims 23-24.
As for claim 18, based on the amounts recited in Table 4, Mix 5, the water/cement ratio falls within the claimed range.
As for claim 19, as the composition is the same it would therefore inherently possess the claimed yield strength absent evidence showing otherwise. If the composition is physically the same, it must have the same properties. It is well settled that when a claimed composition appears to be substantially the same as a composition disclosed in the prior art, the burden is properly upon the applicant to prove by way of tangible evidence that the prior art composition does not necessarily possess characteristics attributed to the CLAIMED composition. In re Spada, 911 F.2d 705, 15 USPQ2d 1655 (Fed. Circ. 1990); In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980); In re Swinehart, 439 F.2d 2109, 169 USPQ 226 (CCPA 1971) and also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). See also MPEP 2112.01 [R-3] I and II.
As for claim 20, the reference teaches amounts that fall within the claimed ranges. See Table 4, Mix 5.
Claims 1, 4-8, 14-15 and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by China Patent Specification No. CN 109650825 A.
The reference teaches, in Example 1, a concrete comprising 15 parts of Portland cement, 34 parts of oil well cement, 1 part of palygorskite nanoclay, 0.8 parts of glass frit, 1 part of end-hook steel fiber, 0.12 part of polycarboxylate water reducing agent, and 0.2 part of hydroxypropyl methylcellulose.
The instant claims are met by the reference.
As for claim 1, the Portland cement and oil well cement meets the hydraulic cement. The palygorskite nanoclay meets the clay component and the hydroxypropyl methylcellulose meets the viscosity enhancing admixture. The amounts of the palygorskite nanoclay (2 wt%) and the hydroxypropyl methylcellulose (0.4 wt%) fall within the claimed range.
As for claim 4, no accelerator is present in the composition.
As for claim 5, the hydroxypropyl methylcellulose meets the modified polysaccharides.
As for claim 6, the reference teaches palygorskite which is also known as attapulgite.
As for claim 7, the reference teaches steel fibers.
As for claim 8, the reference teaches a polycarboxylate water reducing agent which meets the superplasticizer.
As for claim 14, the addition of water is taught (see Example 1).
As for claim 15, the reference teaches that when the concrete is used for 3D printing it is prepared and then extruded by an extruder.
As for claim 19, as the composition is the same it would therefore inherently possess the claimed yield strength absent evidence showing otherwise. If the composition is physically the same, it must have the same properties. It is well settled that when a claimed composition appears to be substantially the same as a composition disclosed in the prior art, the burden is properly upon the applicant to prove by way of tangible evidence that the prior art composition does not necessarily possess characteristics attributed to the CLAIMED composition. In re Spada, 911 F.2d 705, 15 USPQ2d 1655 (Fed. Circ. 1990); In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980); In re Swinehart, 439 F.2d 2109, 169 USPQ 226 (CCPA 1971) and also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). See also MPEP 2112.01 [R-3] I and II.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 103 (or as subject to pre-AIA 35 U.S.C. 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.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Germany Patent Specification No. 20304239 U1.
The reference was discussed previously, above.
The instant claim is obvious over the reference.
As for claim 20, the amount of the bentonite falls within the claimed range. The amount of the methylcellulose which meets the viscosity enhancing admixture is 0.06% which is about 0.1% and according to MPEP 2144.05: a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over PCT International Patent Publication No. WO 2019/089771 A1.
The reference was discussed previously, above.
The instant claim is obvious over the reference.
As for claim 17 while the reference does not recite the same method steps it is believed that the result is the same. According to MPEP 2144.04 (IV)(C): The selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results. In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946); Selection of any order of mixing ingredients is prima facie obvious. In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930). Also, the transposition of process steps, or the splitting of one step into two, where the processes are substantially identical or equivalent in terms of function, manner and result, was held to not patentably distinguish the processes. Ex parte Rubin (POBA 1959) 128 U.S.P.Q. 440, Cohn v. Comr. Pats. (DCDC 1966) 251 F Supp 378, 148 U.S.P.Q. 486.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANTHONY J GREEN whose telephone number is (571)272-1367. The examiner can normally be reached Monday-Thursday from 6:30-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber R. Orlando can be reached at (571) 270-3149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANTHONY J GREEN/Primary Examiner, Art Unit 1731
ajg
June 10, 2026
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