DETAILED ACTION
Response to Amendment
The preliminary amendment submitted on 29 May 2025 has been entered. After entry of the amendment, claims 21-40 are currently pending in the application.
Claim Objections
Claim 26 is objected to because of the following informalities: In this claim the term “accelerators” appears twice. Appropriate correction is required.
Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 21-40 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
In claims 21, 37, and 39 there is no support for the addition of the phrase “silica-based pozzolan having a D90 of less than about 3 um and/or a D10 greater than about 0.1 um”.
In claim 27, no support can be seen “silica-based pozzolan”.
Applicant points to various parts of the specification for support however the examiner fails to see the support specifically for “silica-based pozzolan”. Accordingly, it is considered new matter.
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.
Claims 21-22, 25-28 and 37-39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 and 19-20 of U.S. Patent No. 10,131,575 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the conflicting claims encompass all of the limitations of the claims of the prior patent and are therefore rendered obvious by said claims.
The instant claims recite the limitation of “mineral fines having a D90 between about 50 µm and about 300 µm” and this is rendered obvious by the coarse limestone powder (LP) having a d90 between about 50 μm and about 200 μm. The size falls within the claimed range. The other claimed limitations are met by the claims of the prior patent. With respect to the OPC meeting ASTM C150, the reference teaches OPC and it is believed that it would obviously meet this standard absent evidence showing otherwise.
Claims 21-22, 27-28 and 37-39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 12-13, 25-28 and 37-39 of U.S. Patent No. 10,730,805 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the conflicting claims encompass all of the limitations of the claims of the prior patent and are therefore rendered obvious by said claims.
The instant claims recite the limitation of “mineral fines having a D90 between about 50 µm and about 300 µm” and this is rendered obvious by the limestone powder having a d90 between about 50 μm and about 300 μm. The size falls within the claimed range. The other claimed limitations are met by the claims of the prior patent. With respect to the OPC meeting ASTM C150, the reference teaches OPC and it is believed that it would obviously meet this standard absent evidence showing otherwise.
Claims 21, 25-28 and 37-39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 10-14, 18-19 and 23 of U.S. Patent No. 10,737,980 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the conflicting claims encompass all of the limitations of the claims of the prior patent and are therefore rendered obvious by said claims.
The instant claims recite the limitation of “mineral fines having a D90 between about 50 µm and about 300 µm” and this is rendered obvious by the limestone powder having a d90 between about 50 μm and about 300 μm. The size falls within the claimed range. The other claimed limitations are met by the claims of the prior patent. The prior patent teaches a polycarboxylate ether superplasticizer which is an example of an admixture. With respect to the OPC meeting ASTM C150, the reference teaches OPC and it is believed that it would obviously meet this standard absent evidence showing otherwise.
Claims 21, 25-28, 33 and 37-39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,168,029 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the conflicting claims encompass all of the limitations of the claims of the prior patent and are therefore rendered obvious by said claims.
The instant claims recite some of the same as instantly claimed and are therefore rendered obvious by the claims of the prior patent. Note that the prior patent recites many of the same SCM’s and mineral fines as instantly claimed. The prior patent teaches a polycarboxylate ether superplasticizer which is an example of an admixture. With respect to the OPC meeting ASTM C150, the reference teaches OPC and it is believed that it would obviously meet this standard absent evidence showing otherwise.
Claims 21-39 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,151,974 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the conflicting claims encompass all of the limitations of the claims of the prior patent and are therefore rendered obvious by said claims.
The instant claims recite some of the same as instantly claimed and are therefore rendered obvious by the claims of the prior patent. Note that the prior patent recites many of the same SCM’s and mineral fines as instantly claimed. The prior patent teaches a polycarboxylate ether superplasticizer which is an example of an admixture. With respect to the OPC meeting ASTM C150, the reference teaches OPC and it is believed that it would obviously meet this standard absent evidence showing otherwise.
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
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September 21, 2026
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