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 .
Election/Restrictions and Status of the Claims
Claims 9-20 and 22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected composition and a nonelected method of making, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 8/11/2026.
Applicant’s election without traverse of Group I, claims 1-3 and 5-8 in the reply filed on 8/11/2026 is acknowledged. Claims 1-3 and 5-8 are under current examination.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 8/11/2026 has been considered by the examiner.
Claim Rejections - 35 USC § 102/103
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
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 1-3 and 5-8 are rejected under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over JP2002201382A (Ikeda et al.; “Ikeda”; cited by Applicant in IDS dated 5/14/2024).
The instant claims are drawn to a calcinated mixture comprising aluminum oxide and zinc oxide as further specified in the claims.
Ikeda teaches zinc oxide microparticles in a formulation comprising 0.9% alumina (aluminum oxide)(paragraph [0059]). The microparticles are produced using 50 g/L zinc oxide slurry in admixture with 12.5 g/L colloidal alumina (aluminum oxide solution)(a 4:1 ratio of zinc oxide to aluminum oxide, limitation of claim 6) over a time period of two hours (see Example 2, paragraph [0057]) wherein carbon dioxide gas is introduced to produce ZnCo3, dried particles of which are produced by spray drying then heated and thermally decomposed to produce 0.02 micrometer Al2O3-ZnO composite particles (see [0059])(“a calcinated mixture comprising aluminum oxide and zinc oxide” and “composite” as in claims 1 and 2), which appear to be in the form of a solid powder as in instant claim 8.
Regarding claims 1, 2, 6, and 8, Ikeda anticipates each and every claim.
Regarding the mesoporosity, plate-like shape, and dimension as in respective claims 3, 5, and 7, it is the examiner’s position that the composites in the prior art are produced by methods including temperature parameters such that the process of the prior art reasonably would have produced a product having the same or substantially the same properties as instantly claimed because where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an Applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. See In re Ludtke, 441 F.2d 660, 169 USPQ 563 (CCPA 1971). Whether the rejection is based on "inherency" under 35 USC 102, on "prima facie obviousness" under 35 USC 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art products. In re Best, Bolton, and Shaw, 195 USPQ 430, 433 (CCPA 1977) citing In re Brown, 59 CCPA 1036, 459 F.2d 531, 173 USPQ 685 (1972).
In the event that the parameters of Ikeda only overlap and do not anticipate the content of claims 3, 5, and 7, this rejection is made using obviousness rationale. It would have been prima facie obvious to one of ordinary skill in the art at the time the invention was filed to adjust the content, temperature, and particle or platelet size and dimension based on Ikeda’s disclosed starting points, with a reasonable expectation of success. One would have been motivated to do so to achieve desirable physical properties such as size and solubility ease based on Ikeda’s disclosed examples and routine optimization thereof.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AUDREA B CONIGLIO whose telephone number is (571)270-1336. The examiner can normally be reached Monday - Thursday 7:00 a.m. - 5:30 p.m..
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Hartley can be reached at 5712720616. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AUDREA B CONIGLIO/Primary Examiner, Art Unit 1617
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