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
Applicant's election with traverse of Group I, claims 1 and 3-9 in the reply filed on 09/23/2026 is acknowledged. The traversal is on the ground(s) that the claims do not lack unity of invention a priori, and that the claims share a common technical feature of a metaphosphate-providing component and/or orthophosphate-providing component. This is not found persuasive because, assuming arguendo Applicant’s arguments, the alleged common technical feature does not make a contribution over Konig et al. (US5066624, hereinafter referred to as Konig) as detailed in the rejections below.
The requirement is still deemed proper and is therefore made FINAL.
Claims 10-14 and 16-23 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 09/23/2026.
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 3-5 and 7 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.
Claims 3-5 and 7 all contain the limitation “and/or” at the second to last grouped limitation of the claim. It is unclear if this limitation modifies each enumerated limitation of the claim, or if the “and/or” gate only modifies the last two limitations of the claim.
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.
Claim(s) 1, 3-5, and 7-8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Konig et al. (US5066624, hereinafter referred to as Konig).
Regarding claim 1, Konig discloses a castable refractory composition comprising: a cement-free refractory particulate composition (see Konig at Col. 5, lines 65-69 and Col. 6, lines 1-2, disclosing a refractory composition.); and a sol binder (see Konig at Col. 5, lines 65-69 and Col. 6, lines 1-2, disclosing amorphous silica, which Examiner notes is a sol binder.); wherein the castable refractory composition comprises a metaphosphate-providing component and/or an orthophosphate-providing component (see Konig at Col. 5, lines 65-69 and Col. 6, lines 1-2, disclosing aluminum metaphosphate.).
Regarding claim 3, Konig discloses wherein:(a) the metaphosphate-providing component is a metaphosphate salt;(b) the orthophosphate-providing component is an orthophosphate salt; and/or (c) the metaphosphate-providing component and/or the orthophosphate- providing component is present in the castable refractory composition in an amount from about 1 wt. % to about 10 wt. % based on the total weight of the castable refractory composition prior to drying (see Konig at Col. 5, lines 65-69 and Col. 6, lines 1-2, disclosing aluminum metaphosphate, which Examiner notes is a metaphosphate salt.).
Regarding claim 4, Konig discloses wherein the sol binder:(a) comprises colloidal silica;(b) comprises, prior to drying of the sol binder: from about 20 wt. % to about 50 wt. % colloidal silica; and from about 50 wt. % to about 80 wt. % water; and/or (c) has an apparent viscosity at 250C and at a shear rate of 50 s-1, prior to drying of the sol binder, of no greater than about 35 mPa-s (see Konig at Col. 2, lines 46-47, disclosing the silica used being colloidal silica).
Regarding claim 5, Konig discloses wherein the cement-free refractory particulate composition:(a) comprises the metaphosphate-providing component and/or the orthophosphate-providing component;(b) comprises refractory aggregate material;(c) is substantially free of silicon carbide; and/or (d) is substantially free of zirconium silicate; and/or wherein the sol binder:(a) comprises the metaphosphate-providing component and/or the orthophosphate-providing component;(b) comprises colloidal silica;(c) is substantially free of silicon carbide;(d) is substantially free of zirconium silicate; and/or (e) prior to drying, comprises: from about 20 wt. % to about 50 wt. % colloidal silica; and from about 50 wt. % to about 80 wt. % water; and/or the sol binder has an apparent viscosity at 25*C and at a shear rate of 50 s-1, prior to drying, of no greater than about 35 mPa-s (see Konig at Col. 2, lines 46-47, disclosing the silica used being colloidal silica).
Regarding claim 7, Konig discloses wherein the cement-free refractory particulate composition comprises:(a) microsilica; (b) a deflocculant; and/or (c) a colloidal silica activator (see Konig at Col. 2, lines 46-47, disclosing the silica used being colloidal silica with a grain size below 1 µm, which Examiner notes corresponds to microsilica).
Regarding claim 8, Konig discloses wherein the cement-free refractory particulate composition comprises from about 1 wt. % to about 20 wt. % of the metaphosphate-providing component and/or the orthophosphate- providing component (see Konig at Col. 5, lines 65-69 and Col. 6, lines 1-2, disclosing 0.3 to 1 mass% aluminum metaphosphate, which overlaps with the claimed range.).
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.
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.
Claim(s) 6 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Konig.
Regarding claim 6, Konig makes obvious wherein the cement-free refractory particulate composition comprises: from about 50 wt. % to about 70 wt. % of bauxite (see Konig at Col. 5, lines 65-69 and Col. 6, lines 1-2, disclosing 25 to 50 mass% sintered bauxite, which overlaps with the claimed range.) In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (see MPEP 2144.05); and from about 20 wt. % to about 40 wt. % of alumina (see Konig at Col. 5, lines 65-69 and Col. 6, lines 1-2, disclosing 1 to 10 mass% alumina, which is close to touching the claimed range.) A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. (see MPEP 2144.05(I), second paragraph).
Regarding claim 9, Konig makes obvious wherein, prior to drying of the castable refractory composition, the castable refractory composition comprises: from about 70 wt. % to about 93 wt. % of the cement-free refractory particulate composition; and from about 5 wt. % to about 15 wt. % of the sol binder (see Konig at Col. 5, lines 65-69 and Col. 6, lines 1-2, disclosing 25-50 mass% sintered bauxite, 1-10 mass% alumina, 0.3-1 mass% aluminum metaphosphate, 0.5 to 4 mass% alkali silicates, and the residual balance zirconium silicate. Examiner notes with 0.1-3 mass% amorphous silica binder, this provides a range of 97-99.9 mas% cement-free refractory particulate composition, which is close to touching the claimed range.).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US4069057.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CAMERON K MILLER whose telephone number is (571)272-4616. The examiner can normally be reached M-F 8:00am - 5:00pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber 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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CAMERON K MILLER
Examiner
Art Unit 1731
/CAMERON K MILLER/Examiner, Art Unit 1731
