DETAILED ACTION
The present application is a 371 national stage entry of PCT/TR2022/050057.
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
Applicant's election with traverse of Group I (Claims 1-12) in the reply filed on August 26, 2026 is acknowledged. The traversal is on the ground(s) that the Applicant makes an argument that the common technical features of the claims make a contribution over the prior art (See Applicant’s Remarks, filed 08/26/2026: pp. 1-3). This is not found persuasive.
The Examiner notes that the Applicant is narrowly interpreting the claimed invention inconsistent with the claim language. Contrary to the Applicant’s assertions, the claimed invention does not require a combination of every recited bacterial strain and/or clay species in each Markush group; rather, the language of the instant claims only requires one species of a bacterial strain and one species of the clay species to meet the claimed invention.
Moreover, a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v.Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (reference disclosing optional inclusion of a particular component teaches compositions that both do and do not contain that component); Celeritas Technologies Ltd. v. Rockwell International Corp., 150 F.3d 1354, 1361, 47 USPQ2d 1516, 1522-23 (Fed. Cir. 1998) (The court held that the prior art anticipated the claims even though it taught away from the claimed invention. “The fact that a modem with a single carrier data signal is shown to be less than optimal does not vitiate the fact that it is disclosed.”).
Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971).
As stated in the Requirement for Restriction, mailed on July 16, 2026, the prior art (Guldogan) discloses bio-based rheology modifying agents for cement-based materials, comprising bacterial cells (e.g., Sporosarcina pasteurii (S. pasteurii); Bacillus amyloliquefaciens (B. amyloliquefaciens); Paenibacillus polymyxa (P. polymyxa)); and admixtures comprising minerals, such as sepiolite.
The requirement is still deemed proper and is therefore made FINAL.
Claims 13-24 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 August 26, 2026.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Should applicant desire to obtain the benefit of foreign priority under 35 U.S.C. 119(a)-(d) prior to declaration of an interference, a certified English translation of the foreign application must be submitted in reply to this action. 37 CFR 41.154(b) and 41.202(e).
Failure to provide a certified translation may result in no benefit being accorded for the non-English application.
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.
Claim 3 is 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 cement-based composition, comprising a bacterial strain for improving thixotropic and rheological properties and a clay species as an admixture, wherein the bacterial strain is at least one selected from the group consisting of Sporosarcina pasteurii, Bacillus megaterium, Bacillus subtilis, and Paenibacillus polymyxa, and the clay species is at least one of sepiolite and bentonite” in lines 1-4.
Claim 3 recites the limitation “The cement-based composition according to claim 1, wherein the admixture is the sepiolite” in lines 1-2. It is unclear how the entire admixture is considered sepiolite.
The Examiner suggests the following amendment to Claim 3:
3. (Currently Amended) The cement-based composition according to claim 1, wherein the clay species is the sepiolite.
Claim Rejections - 35 USC § 102
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.
Claims 1-3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Guldogan (NPL cited by Applicant)1.
Claim 1. A cement-based composition, comprising a bacterial strain for improving thixotropic and rheological properties and a clay species as an admixture, wherein the bacterial strain is at least one selected from the group consisting of Sporosarcina pasteurii, Bacillus megaterium, Bacillus subtilis, and Paenibacillus polymyxa, and the clay species is at least one of sepiolite and bentonite.
Guldogan discloses bio-based rheology modifying agents for cement-based materials, comprising bacterial cells (e.g., Sporosarcina pasteurii (S. pasteurii); Bacillus amyloliquefaciens (B. amyloliquefaciens); Paenibacillus polymyxa (P. polymyxa)); and admixtures comprising clays, such as sepiolite (Abstract; p. 4; p. 14; p. 64; pp. 72-73).
Claim 2. Guldogan discloses The cement-based composition according to claim 1, wherein the bacterial strain is at least one of the Sporosarcina pasteurii and the Bacillus megaterium (p. 4; p. 14; p. 64; pp. 72-73).
Claim 3. Guldogan discloses The cement-based composition according to claim 1, wherein the admixture is the sepiolite (See rejection under 35 U.S.C. § 112(b); p. 4; p. 14; p. 64; pp. 72-73).
Claims 1-2 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wilson et al. (US 2017/0029689).
Claim 1. Wilson discloses A cement-based composition (Abstract; [0009] “settable slurries”; [0020]), comprising a bacterial strain for improving thixotropic and rheological properties and a clay species as an admixture, wherein the bacterial strain is at least one selected from the group consisting of Sporosarcina pasteurii, Bacillus megaterium, Bacillus subtilis, and Paenibacillus polymyxa ([0009] “The settable slurries contain … a calcium carbonate producing microbe or enzyme or a combination thereof.”; [0012] “ Exemplary and non-limiting microbes include Sporosarcina pasteurii (formerly known as Bacillus pasteurii), Bacillus megaterium, Sporosarcina ureae, Pseudomonas aeruginosa, Proteus Vulgaris, Bacillus sphaericus, Myxococcus xanthus, Leuconostoc mesenteroides, Bacillus subtilis, Deleya halophila, Halomonas eurihalina, Proteus mirabilis and Helicobacter pylori. ”), and the clay species is at least one of sepiolite and bentonite ([0021] “The settable slurries can further comprise various additives. Exemplary additives include … an extender to lower density”; [0026] “Extenders include … clays such as hydrous aluminum silicates (e.g., bentonite (85% mineral clay smectite)”).
Claim 2. Wilson discloses The cement-based composition according to claim 1, wherein the bacterial strain is at least one of the Sporosarcina pasteurii and the Bacillus megaterium ([0012]).
Claim Rejections - 35 USC § 103
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.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Wilson et al. (US 2017/0029689) in view of Guldogan (NPL cited by Applicant)2.
Claim 3. Wilson discloses The cement-based composition according to claim 1. Wilson discloses that the settable slurries may include clays, such as bentonite ([0026]), but Wilson does not disclose wherein the admixture is the sepiolite (See rejection under 35 U.S.C. § 112(b)). However, Guldogan teaches bio-based rheology modifying agents for cement-based materials, comprising bacterial cells (e.g., Sporosarcina pasteurii (S. pasteurii); Bacillus amyloliquefaciens (B. amyloliquefaciens); Paenibacillus polymyxa (P. polymyxa)); and admixtures comprising minerals (Abstract; p. 4; p. 14; p. 64; pp. 72-73). Guldogan teaches that clays, such as attapulgite, bentonite, kaolinite, and sepiolite are well-known rheology modifiers for cement-based materials (p. 14). Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the clay in Wilson with sepiolite, as taught by Guldogan, as a simple substitution of a well-known clay with a reasonable expectation of success. In re Fout, 675 F.2d 297, 301, 213 USPQ 532, 536 (CCPA 1982).
Claims 4-11 are rejected under 35 U.S.C. 103 as being unpatentable over Wilson et al. (US 2017/0029689).
Claims 4-7. Wilson discloses The cement-based composition according to claim 1. Regarding the limitations: wherein the bacterial strain is in a range of 0.5% to 1.5% by weight (Claim 4); wherein the admixture is in a range of 0.2% to 1% by weight (Claim 5); wherein the admixture is in a range of 0.5% to 1.5% by weight (Claim 6); wherein the admixture is comprised at a value of 0.6%, 0.7%, 0.8%, 0.9%, or 1% by weight (Claim 7); it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the concentration range(s) of the settable slurry component(s) (i.e. microbe and/or clay) in Wilson to the range(s) as claimed, because it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F. 2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claim 8. Wilson discloses The cement-based composition according to claim 1. Regarding the limitation: further comprising cement, fly ash as a binder, and water as a component, Wilson discloses that the settable slurry comprises an aqueous carrier fluid, such as water ([0018] – [0019]); aggregates, such as recycled concrete ([0020]); and pozzolan, such as fly ash ([0026]).
Claim 9. Wilson discloses The cement-based composition according to claim 8. Regarding the limitation: wherein an amount of the binder: the water is in a range of 0.36 to 0.4 by weight, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the ratio of fly ash : water in Wilson to the range as claimed, because it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F. 2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claim 10. Wilson discloses The cement-based composition according to claim 8, further comprising sand ([0020]).
Claim 11. Wilson discloses The cement-based composition according to claim 10. Regarding the limitation: wherein an amount of the sand: the binder is in a range of 1:1 to 1.5:1 by weight, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the ratio of sand : fly ash in Wilson to the range as claimed, because it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F. 2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Wilson et al. (US 2017/0029689) in view of Constantz et al. (US 2012/0031303).
Claim 12. Wilson discloses The cement-based composition according to claim 1. Wilson discloses that the settable slurry may comprise various additives ([0021]), but Wilson does not disclose further comprising at least one of a superplasticizer and an aluminum powder to contribute to a flowability. However, Constantz teaches cementitious compositions comprising: clay minerals, such as sepiolite ([0213]); cement ([0215]); aggregates ([0218]); and brines with bacterial content ([0344]; [0384]). Constantz further teaches that the cementitious compositions may include additives ([0222] – [0243]), such as: dispersants comprising superplasticizers ([0225]; [0231]) and/or gas forming agents comprising aluminum powder ([0235]). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the settable slurry in Wilson with additives, as taught by Constantz, in order to improve workability of the composition with a reasonable expectation of success (Constantz: [0223]; [0225]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Luke et al. (US 2015/0122486); Dosier (US 2014/0239535).
Luke discloses a method and composition for downhole applications, such as cementing a wellbore, wherein the composition is a pumpable slurry ([0022]; [0024]; [0031]) comprising cement, water, and calcium carbonate forming microorganisms such as Bacillus pasteurii and/or Sporosarcina pasteurii ([0071]; [0084]; [0155]; [0156]) as well as nutrients ([0070] - [0074]; [0157]). Luke further teaches pumping the cement slurry into the wellbore ([0024]; [0052]; [0054]) and allowing the cement composition to set ([0024]).
Dosier discloses methods of cementation using aggregates, an enzyme producing bacteria, urea, and calcium ions that contribute to the formation of calcium carbonate to form bonds between the loose aggregate ([0009] - [0012]; [0027]; [0036]). Dosier further discloses that a preferred bacteria is Sporosarcina Pasteurii ([0027]; [0038]) and that the bacteria may be mixed in an aqueous solution of urea and calcium chloride ([0027]; [0038]; [0041]). Dosier also discloses that the composition may include clay ([0027]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Crystal J. Lee whose telephone number is (571)272-6242. The examiner can normally be reached M-F from 9:00am - 5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sally Merkling can be reached at (571) 272-6297. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CRYSTAL J LEE/Primary Examiner, Art Unit 1738
1 Ayca Gisu Guldogan, Bio-Based Rheology Modifying Agents for Cement-Based Materials, Graduate School of
Engineering In Partial Fulfillment of the Requirements for the Degree of Master of Science, Özyeğin University,
2020, pp.1-108.
2 Ayca Gisu Guldogan, Bio-Based Rheology Modifying Agents for Cement-Based Materials, Graduate School of
Engineering In Partial Fulfillment of the Requirements for the Degree of Master of Science, Özyeğin University,
2020, pp.1-108.
Prosecution Insights