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
Claims 8-14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 8/10/26.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 2 of U.S. Patent No.: 11931693. Although the claims at issue are not identical, they are not patentably distinct from each other because
Claims 1 and 2 of ‘693 overlap Claim 1 of the current application.
Claims 1, 2, 3, 4, 5, 6 and 8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 3, 4, 5, 6 and 8 of copending Application No.: 18/939355 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because Claim 1 of ‘355 overlaps Claim 1 of the current application.
Claim 2 of ‘355 overlaps Claim 2 of the current application.
Claim 3 of ‘455 overlaps Claim 3 of the current application.
Claim 4 of ‘455 overlaps Claim 4 of the current application.
Claim 5 of ‘455 overlaps Claim 5 of the current application.
Claim 6 of ‘455 overlaps Claim 6 of the current application.
Claim 8 of ‘455 overlaps Claim 8 of the current application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 1 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No.: 17/895020 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Claim 1 of ‘202 overlaps Claim 1 of the current application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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) 1, 2, 3, 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wang (CN 110451854) and in view of Hansen (US Pat.: 9067824).
As to Claims 1, 2 and 3, Wang describes a concrete composition (title) that comprises a cement composition, fly ash, titanium dioxide and pozzolan (abstract).
Wang does not state that the pozzolanic composition is in particles and what the size of those particles are.
Hansen explains that pozzolans are known to be used in Portland cement because it improves concrete durability and has a number of other benefits (col. 1, lines 20-25). The reference explains that the process can employ comminuting, classifying and/or modifying chemistry of the pozzolan to have a desired particle size distribution, desired chemical composition and/or a desired consistency in chemical properties and/or particle size (col. 3, lines 31-35). Control modules can be employed to obtain the desired distribution of cement particles and/or pozzolan particles and their desired chemical characteristics (col. 3, lines 52-54). In some embodiments, Hansen teaches that the pozzolan fraction can include fine pozzolan with 0.1-3 microns (col. 3, lines 65-66) and/or coarse particles with a size of 15-60 microns (col. 4, lines 1-2). Generally, the size range of the pozzolan used is from 0.1 to 100 micrometers (col. 11, lines 41-43), but use of a classifier and/or two can be used to remove the particles on the lower ranges/undesired sizes (col. 11, lines 50-55). The product can then result in a pozzolan with a size of 10-45 micrometers (col. 11, lines 55-56).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add pozzolan particles with a size range of 10-45 micrometers, as taught by Hansen for use with the cement of Wang because Hansen explains that the addition of pozzolan particles are known to improve concrete durability and that the size can be optimize in order to obtain the desired chemical composition and/or a desired consistency in chemical properties and/or particle size of the cement product.
It would have been obvious to one having ordinary skill in the art to have determined the optimum value of a cause effective variable such as pozzolan particle size through routine experimentation in the absence of a showing of criticality. In re Woodruff, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990).
As for the intended use feature of Claim 1, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the same composition used the same way would have the same effects.
As to Claim 4, Wang teaches inclusion of silica fume (see “summary of the invention”, para. 2).
Claim(s) 5, 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wang and Hansen as applied to claim 1 above, and further in view of Rahman (US Pub.: 2021/0130236) and evidenced by Zhou (US Pat.: 8097229).
The references do not teach the addition of a porous inorganic material (Claim 5), such as zeolite or mafic (Claim 6).
Rahman describes a dry concrete composition that includes pozzolan and zeolite particles (Claim 1). Rahman explains that in the prior art, the use of zeolite additives are known to reduce the energy burden of typical cement production (para. 3).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include zeolite additives to the cement composition, as taught by Rahman for use with the cement composition of Wang and Hansen because these are known to reduce the energy burden of typical cement production.
As to the zeolite being porous, Zhou teaches that zeolites are porous inorganic compositions (see “description” (6)).
Therefore, the same composition would have the same characteristics.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHENG HAN DAVIS whose telephone number is (571)270-5823. The examiner can normally be reached 9-5:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Fung Coris can be reached at 571-270-5713. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SHENG H DAVIS/Primary Examiner, Art Unit 1732 September 29, 2026
