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 .
Information Disclosure Statement
The information disclosure statement filed 12/04/2024, specifically the non-patent literature documents cited in numbers 2-6 and 11, fail to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because the documents are not in English language and the submission does not include a concise explanation of relevance. It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
Specification
The disclosure is objected to because of the following informalities: Table 35, shown with Examiner’s annotation below, contain words and numbers that are not in the same line. The whole words and numbers should be in the same line.
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Appropriate correction is required.
Claim Objections
Claim 3 is objected to because of the following informalities: claim 3 reciting “1%and” appears to have a typographical error and should be “1% and”. Appropriate correction is required.
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 2, 12-13 and 19 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.
Claim 2 reciting “pozzolans… natural pozzolans… limestone” is indefinite because it is not clear if the recitations are the same or different from the pozzolanic mixture claimed in claim 1.
Examiner will treat the recitation as different pozzolans from the recitation in claim 1 based on specification at page 17 lines 10-16 disclosing the cementitious composition also optionally comprises other components, additives or minerals that generally correspond to by-products of other processes or materials of vegetable origin… among possible components that are optionally added to the cementitious composition, there are: pozzolans… natural pozzolans… other materials include… limestone.
Examiner suggests clarifying the claimed limitation because “claims must particularly point out and distinctly define the metes and bounds of the subject matter to be protected by the patent grant... uncertainties of claim scope should be removed, as much as possible, during the examination process” (see MPEP 2171).
Claim 12 reciting “wherein it has a particle size is below 75 microns” is indefinite because it is not clear what the claimed “it” refers to.
Examiner will treat “it” as the claimed pozzolanic mixture based on specification at page 9 lines 14-15 disclosing the pozzolanic mixture… has a particle size less than 75 microns.
Examiner suggests clarifying the claimed limitation because “claims must particularly point out and distinctly define the metes and bounds of the subject matter to be protected by the patent grant... uncertainties of claim scope should be removed, as much as possible, during the examination process” (see MPEP 2171).
Claim 13 lines 3-7 reciting “adding a pozzolanic mixture… to an OPC clinker and a cementitious composition setting regulator” is indefinite because it is not clear if the claimed “pozzolanic mixture” in lines 3-6 is the same or different the claimed “pozzolanic mixture” in claim 1 lines 5-9, if the claimed “an OPC clinker” is the same or different from the claimed “OPC clinker” in claim 1 line 3, and if the claimed “cementitious composition setting regulator” is the same or different from the claimed “cementitious composition setting regulator” in claim 1 line 4.
Examiner will treat the claimed “pozzolanic mixture”, “OPC clinker”, and “cementitious composition setting regulator” in claim 13 is the same as the in claimed “pozzolanic mixture”, “OPC clinker”, and “cementitious composition setting regulator” in claim 1 based on specification at page 3 lines 20-21.
Examiner suggests clarifying the claimed limitation because “claims must particularly point out and distinctly define the metes and bounds of the subject matter to be protected by the patent grant... uncertainties of claim scope should be removed, as much as possible, during the examination process” (see MPEP 2171).
Claim 19 lines 2-5 reciting “adding a pozzolanic mixture… to an OPC clinker and a cementitious composition setting regulator” is indefinite because it is not clear if the claimed “pozzolanic mixture” is the same or different the claimed “pozzolanic mixture” in claim 14 lines 9-13, and if the claimed “cementitious composition components, fine aggregates, coarse aggregates, and water” is the same or different from the claimed “cementitious composition components, fine aggregates, coarse aggregates, and water” in claim 14 lines 2-8.
Examiner will treat the claimed “pozzolanic mixture” and “cementitious composition components, fine aggregates, coarse aggregates, and water” in claim 19 is the same as the in claimed “pozzolanic mixture and “cementitious composition components, fine aggregates, coarse aggregates, and water” in claim 14 based on specification at page 3 lines 22-24.
Examiner suggests clarifying the claimed limitation because “claims must particularly point out and distinctly define the metes and bounds of the subject matter to be protected by the patent grant... uncertainties of claim scope should be removed, as much as possible, during the examination process” (see MPEP 2171).
Claim Rejections - 35 USC § 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 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.
Claims 1-6, 8-10 and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Herfort et al. (US 2012/0055376 A1) (“Herfort” hereinafter) in view of Barger et al. (US 5,626,665) (“Barger” hereinafter).
Regarding claim 1, Herfort teaches a cementitious composition (see Herfort at [0020] teaching cement), comprising:
an Ordinary Portland Cement (OPC) clinker (see Herfort at [0020] teaching Portland cement clinker),
between 35% and 75% (w/w) (see Herfort at [0077] teaching the remainder (65% w/w) of the cement consists of Portland cement),
a cementitious composition setting regulator between 1 and 10% (w/w) (see Herfort at [0077] teaching (65% w/w) of the cement consists of Portland cement (Portland cement clinker plus small amounts of gypsum), see Herfort at [0080] teaching 100% Portland cement containing 5% gypsum). Gypsum is taken to meet the claimed “cementitious composition setting regulator” based on specification at page 11 line 9-10 disclosing the setting regulator is selected from… gypsum. The amount of gypsum in the cement composition is 3.25 wt% (or ( 65 x 5%)); and
a pozzolanic mixture (see Herfort at [0020] teaching supplementary cementitious material). The supplementary cementitious material is taken to meet the claimed “pozzolanic mixture” based on the structure as outlined below,
between 20% and 60% (w/w) (see Herfort at [0077] teaching supplementary cementitious material constitutes 35% w/w of the total mass of the cement);
wherein the pozzolanic mixture (see Herfort at [0077] teaching within the supplementary cementitious material, the relative contents of carbonate material and heat treated clay material are varied… lines 2 and 3 in Table 1), comprises:
an activated clay (see Herfort at [0020] teaching heat treated clay material, see Herfort at [0069] teaching the heat treated clay material is calcined clay). Calcined clay is taken to meet the claimed “activated clay” based on specification at page 5 line 17-18 disclosing activated clay is also to be understood as “calcined clay”,
between 20% and 85% (w/w) (see Herfort at Table 1 teaching… calcined… clay 30%); and
a limestone (see Herfort at [0020] teaching optionally heat treated carbonate material, see Herfort at [0078] teaching the carbonate material… is limestone),
between 10% and 75% (w/w) (see Herfort at Table 1 teaching… limestone… 70%);
wherein the components of said pozzolanic mixture are mixed separately and prior to being combined with the OPC Clinker and the cementitious composition setting regulator (this recitation is being treated as product-by-process limitations because it is not seen to differ structurally from the applied prior art Herfort (see MPEP 2113.I). In this instance, the structure imparted by the recitations is cementitious composition mixture, see Herfort teachings outlined above).
Herfort does not explicitly teach the claimed “a pozzolanic mixture setting regulator between 3% and 15% (w/w)”.
Like Herfort, Barger teaches calcined clay for use with Portland cement (see Barger at C8 L26-30 teaching a blended pozzolan for use with Portland cement for preparing cementitious systems, comprising, pozzolan, preferably calcined clay, and at least one of the components selected from the group consisting of: about 2 to about 30 percent by weight gypsum). About 2 to about 30 percent by weight gypsum is taken to meet the claimed “a pozzolanic mixture setting regulator between 3% and 15% (w/w)” (see MPEP 2144.05(I)) based on specification at page 9 lines 1-3 disclosing the setting regulator is of natural or synthetic origin and it is selected from… gypsum.
Barger further teaches it is believed that the higher SO3 levels (gypsum) assist in increasing the early compressive strengths and improved sulfate resistance, while not affecting the water demand (see Barger at C13 L26-29).
As such, one of ordinary skill in the art would appreciate that Barger teaches that about 2 to about 30 percent by weight gypsum assist in increasing the early compressive strengths and improved sulfate resistance, while not affecting the water demand, and seek those advantages by adding about 2 to about 30 percent by weight gypsum in the supplementary cementitious material as taught by Herfort.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to add about 2 to about 30 percent by weight gypsum as taught by Barger in the supplementary cementitious material as taught by Herfort so as to assist in increasing the early compressive strengths and improved sulfate resistance, while not affecting the water demand.
Regarding claim 2, Herfort in view of Barger teach the limitations as applied to claim 1 above, but Herfort does not explicitly teach further comprises other components, additives or minerals selected from pozzolans, slag, mineral additions, fly ash, ground blast furnace slag, silica fume, natural pozzolans, dust, brick chips, limestone, tertiary amines, TEA, and TIPA.
However, Barger teaches another embodiment… comprises fly ash, gypsum, clay and a clinker consisting essentially of hydraulic calcium silicates… no other marketable systems are known which utilize both fly ash and clay… this embodiment is extremely marketable and cost efficient as it allows the addition the fly ash which decreases costs, while none of the above listed desirable characteristics are lost (see Barger at C8 L19-25).
As such, one of ordinary skill in the art would appreciate that Barger teaches that fly ash decreases costs without losing the desirable characteristics of the gypsum, clay and clinker mixture, and seek those advantages by adding fly ash in the cement composition as taught by Herfort.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to add fly ash as taught by Barger in the cement composition as taught by Herfort because the fly ash decreases costs without losing the desirable characteristics of the mixture.
Regarding claim 3, Herfort in view of Barger teach the limitations as applied to claim 1 above, and Herfort further teaches wherein the OPC clinker has a C3S silicates content between 50% and 80% (see Herfort at [0080] teaching Portland cement clinker… with a mineral composition… of 57% C3S) (see MPEP 2144.05(I)), and
a C3A aluminates content between 1% and 10% (see Herfort at [0080] teaching Portland cement clinker… with a mineral composition… 7% C3A).
Regarding claim 4, Herfort in view of Barger teach the limitations as applied to claim 1 above, and Herfort further teaches wherein the cementitious composition setting regulator is selected from… calcium sulfate dihydrate (gypsum) (see Herfort at [0077] teaching (65% w/w) of the cement consists of Portland cement (Portland cement clinker plus small amounts of gypsum), see Herfort at [0080] teaching 100% Portland cement containing 5% gypsum).
Regarding claim 5, Herfort in view of Barger teach the limitations as applied to claim 1 above, and Herfort further teaches further comprising an alkaline activator between 0 and 0.7% (w/w) (see Herfort at [0077] teaching cement composition). Herfort does not teach an alkaline activator, which is taken to meet the claimed “alkaline activator… 0% (w/w)”.
Regarding claim 6, Herfort in view of Barger teach the limitations as applied to claim 1 above, but Herfort does not explicitly teach further comprising an alkaline activator which is selected from sea salt, sodium hydroxide (NaOH), sodium chloride (NaCl), sodium sulfate (Na2SO4), sodium carbonate (Na2CO3), potassium hydroxide (KOH), potassium chloride (KCl), potassium sulfate (K2SO4) or combination thereof.
However, Barger teaches a sufficient amount of an alkali containing component to raise the alkali level in the cementitious system by about 0% to about 2.0% Na2O equivalent may also be added… the alkali containing component may come from several different sources… the compounds high in available alkali include alkali salts such as KOH… and their sodium counterparts (see Barger at C13 L1-5 and 12-14). Sodium counterpart of KOH or NaOH is taken to meet the claimed “further comprising an alkaline activator which is selected from… sodium hydroxide (NaOH)”.
As such, one of ordinary skill in the art would appreciate that Barger teaches that a sufficient amount of an alkali containing component (or NaOH) can raise the alkali level in the cementitious system, and seek those advantages by adding alkali containing component (or NaOH) in the cement composition as taught by Herfort.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to add alkali containing component (or NaOH) as taught by Barger in the cement composition as taught by Herfort because a sufficient amount of an alkali containing component (or NaOH) can raise the alkali level in the cementitious system.
Regarding claim 8, Herfort in view of Barger teach the limitations as applied to claim 1 above, and Herfort teaches the term “clay material” refers to a solid material composed primarily (75% w/w more) of clay minerals (see Herfort at [0027]). However, Herfort does not explicitly teach wherein the activated clay has a chemical composition having Fe2O3 content between 1% and 60%.
However, Barger teaches that the clay is soft fired… the clay… is preferably selected from the group consisting of clays having… an Fe content as calculated as Fe2O3 of less than about 5.0% (see Barger at C7 L53-56), which is taken to meet the claimed “wherein the activated clay has a chemical composition having Fe2O3 content between 1% and 60%” (see MPEP 2144.05(I)).
Additionally, MPEP states that "[w]here 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", and “the normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” (see MPEP § 2144.05.II.A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have selected clays having an Fe content as calculated as Fe2O3 of less than about 5.0% as taught by Barger as the calcined clay as taught by Herfort because there is a reasonable expectation of success that the disclosed clay would be suitable.
Regarding claim 9, Herfort in view of Barger teach the limitations as applied to claim 1 above, and Herfort further teaches wherein the limestone is a metamorphic limestone (see Herfort at [0026] teaching the term "carbonate material" refers to a solid material composed primarily (75% w/w or more) of carbonate minerals such as the minerals calcite (CaCO3)… examples of carbonate materials are… limestone), which is taken to meet the claimed “metamorphic limestone” based on specification at page 7 lines 19-20 disclosing limestone corresponds to a metamorphic rock composed mainly of calcite.
Regarding claim 10, Herfort in view of Barger teach the limitations as applied to claim 1 above, and Herfort further teaches wherein the limestone has a content between 60% and 99% calcium carbonate (see Herfort at [0034] teaching the term “substantially carbonated” refers to a situation where, after heat treatment, the calcium carbonate (CaCO3) content… at least 90% w/w of the pre-heating calcium carbonate content) (see MPEP 2144.05(I)).
Regarding claim 12, Herfort in view of Barger teach the limitations as applied to claim 1 above, and Herfort further teaches wherein it has a particle size is below 75 microns (see 112 rejection, see Herfort at [0061] teaching the heat treated clay material is ground separately to a 45 µm) (see MPEP 2144.05(I)).
Regarding claim 13, Herfort teaches a method for the preparation of the cementitious composition (see Herfort at [0021] teaching a method of producing a cement comprising Portland cement clinker and a supplementary cementitious material comprising the steps of a) providing a carbonate material and a clay material… and c) blending the mixture with a Portland cement clinker),
of claim 1, comprising adding a pozzolanic mixture comprising: an activated clay between 20 and 85% (w/w); a limestone between 10% and 75% (w/w); and a pozzolanic mixture setting regulator between 3% and 15% (w/w); to an OPC clinker and a cementitious composition setting regulator (see 112 rejection, see claim 1 rejection based on Herfort in view of Barger).
Claims 7 and 11 rejected under 35 U.S.C. 103 as being unpatentable over Herfort in view of Barger as applied to claim 1 above, and further in view of Khan et al. (Carbonation of Limestone Calcined Clay Cement Concrete 2018) (“Khan” hereinafter).
Regarding claim 7, Herfort in view of Barger teach the limitations as applied to claim 1 above, but Herfort in view of Barger do not explicitly teach wherein the activated clay has a mineralogical composition comprising quartz between 20 and 76%, and amorphous between 20 and 70%.
Like Herfort, Khan teaches a cementitious materials comprising Portland cement, calcined clay and limestone (see Khan page 239, section 2.1 Materials, sentence 1 teaching OPC, calcined clay and limestone were used as cementitious materials).
Khan further teaches XRD analysis of the raw calcined clay showed that the main crystalline phase is quartz, indicating that all the kaolinite in the clay is dehydroxylated during calcination… the quartz and the amorphous content in the calcined clay are 49.1 wt% and 50.9 wt% respectively… the calcined clay used… may be categorized as low-grade calcined clay (see Khan at page 239, section 2.1 Materials, sentences 5-7). The calcined clay with 49.1 wt% quartz and 50.9 wt% amorphous content meets the claimed “activated clay has a mineralogical composition comprising quartz between 20 and 76%, and amorphous between 20 and 70%”.
Khan further teaches that the disclosure aims to investigate the carbonation resistance of limestone calcined clay (LC3) concrete (see Khan at Abstract)… wherein OPC blend with calcined clay and limestone is referred to as Limestone Calcined Clay Cement (LC3) (see Khan at page 238, section 1. Introduction, sentence 5). And, Khan teaches that LC3 concrete with OPC substitution up to 30% is suitable for a large range of applications including outdoor exposure (assuming no other aggressive ions are involved) (see Khan at Abstract, sentence 9).
Additionally, MPEP teaches “the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination” (see MPEP § 2144.07). In this case, one of ordinary skill in the art would appreciate that Khan teaches that calcined clay with 49.1 wt% quartz and 50.9 wt% amorphous content is suitable for its intended use in limestone calcined clay (LC3) concrete with OPC substitution, which can be used for a large range of applications including outdoor exposure (assuming no other aggressive ions are involved).
As such, one of ordinary skill in the art would appreciate that Khan teaches that calcined clay with 49.1 wt% quartz and 50.9 wt% amorphous content is suitable for its intended use in limestone calcined clay (LC3) concrete with OPC substitution, which can be used for a large range of applications including outdoor exposure (assuming no other aggressive ions are involved), and seek those advantages by using the calcined clay in blend B45 in the supplementary cementitious material as taught by Herfort.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to use the calcined clay in blend B45 with calcined clay with 49.1 wt% quartz and 50.9 wt% amorphous content as taught by Khan in the supplementary cementitious material as taught by Herfort in view of Barger because it suitable for its intended use in limestone calcined clay (LC3) concrete with OPC substitution, which can be used for a large range of applications including outdoor exposure (assuming no other aggressive ions are involved).
Regarding claim 11, Herfort in view of Barger teach the limitations as applied to claim 1 above, but Herfort in view of Barger do not explicitly teach wherein the limestone has a CaO content between 30% and 56%, and Loss On Ignition (LOI) between 20% and 45%. However, please see claim 7 rejection based on Khan as it applies here as well.
Khan further teaches limestone… used as cementitious materials in this disclosure (see Khan at page 239 section 2.1). Khan also teaches limestone… CaO 57.51 wt%... Loss on ignition (LOI)… 42.61 (see Khan at page 239 section 2.1 Table 1). Loss on ignition (LOI)… 42.61 is taken to meet the claimed “Loss On Ignition (LOI) between 20% and 45%”. CaO 57.51 wt% is taken to meet the claimed “CaO content between 30% and 56%” because a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close enough that one skilled in the art would have expected them to have the same properties (see MPEP § 2144.05). In this instance, there are no expected differences in properties between the limestone with 57.51% CaO as taught by Khan and the claimed “limestone between 30% and 56% CaO”.
Claims 14-17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Herfort in view of Barger and Khan.
Regarding claim 14, Herfort teaches a concrete (see Herfort at [0065] teaching the present disclosure relates to a concrete material comprising a cement according to the present disclosure).
Additionally, Herfort in view of Barger teach wherein said cementitious composition comprises: Ordinary Portland Cement (OPC) clinker between 35% and 75% (w/w); a cementitious composition setting regulator between 1 and 10% (w/w); a pozzolanic mixture between 20% and 60% (w/w); wherein the pozzolanic mixture comprises: an activated clay between 20% and 85% (w/w); a limestone between 10% and 75% (w/w); and a pozzolanic mixture setting regulator between 3% and 15% (w/w), wherein the components of said pozzolanic mixture are mixed separately and prior to being combined with the OPC Clinker and the cementitious composition setting regulator (see claim 1 rejection). And, see claim 7 rejection based on Khan as it applies here as well.
However, Herfort in view of Barger do not explicitly teach a cementitious composition in a concentration of between 10% and 25% (w/w); a fine aggregate between 25% and 45% (w/w); a coarse aggregate between 25% and 55% (w/w); and water between 5% and 10%.
Khan further teaches four concrete mixes have been fabricated… the detail of mixes are shown in Table 2, shown with Examiner annotation below (see Khan at page 240 section 2.2 and Table 2). Total binder as taught by Khan is taken to meet the claimed “cementitious composition comprising… OPC, metakaolin (or activated clay), and limestone”. The total amount of materials in LC3-15 is 2404.3 kg/m3. There are 16 wt% (or ((388 ÷ 2404.3) x 100) total binder, meeting the claimed “cementitious composition in a concentration of between 10% and 25% (w/w)”. There are 26 wt% (or ((620.8 ÷ 2404.3) x 100) fine aggregate, meeting the claimed “fine aggregate between 25% and 45% (w/w)”. There are 51 wt% (or ((1221 ÷ 2404.3) x 100) coarse aggregate, meeting the claimed “coarse aggregate between 25% and 55% (w/w)”. And, there are 7 wt% (or ((174.5 ÷ 2404.3) x 100) water, meeting the claimed water between 5% and 10%.
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Additionally, MPEP states that "[w]here 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", and “the normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” (see MPEP § 2144.05.II.A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have selected amounts from within the range taught by Khan in the concrete composition as taught by Herfort in view of Barger because there is a reasonable expectation of success that the disclosed amounts would be suitable.
Regarding claim 15, Herfort in view of Barger and Khan teach the limitations as applied to claim 14 above, but Herfort and Khan do not explicitly teach further comprising additives between 0.04% and 0.5% (w/w).
However, Barger teaches a blended pozzolan for use with Portland cement for preparing a cementitious system… the blended pozzolan comprises… at least one of the components selected from the group consisting of… about 0% to about 5% organic plasticizing agent (see Barger at C15 L14-23). About 0% to about 5% organic plasticizing agent is taken to meet the claimed “further comprising additives between 0.04% and 0.5% (w/w)”.
Further, MPEP states that “the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination” (see MPEP § 2144.07). In this case, one of ordinary skill in the art would appreciate that organic plasticizing agent is a suitable additive for concrete and/or cementitious composition.
Additionally, MPEP states that "[w]here 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", and “the normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” (see MPEP § 2144.05.II.A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have selected about 0% to about 5% organic plasticizing agent taught by Barger in the concrete and/or cementitious material as taught by Herfort in view of Barger and Khan because there is a reasonable expectation of success that organic plasticizing agent is a suitable additive for concrete and/or cementitious composition, and the disclosed amount would be suitable.
Regarding claim 16, Herfort in view of Barger and Khan teach the limitations as applied to claim 14 above, and Khan further teaches wherein the fine aggregate is concrete sand which is selected from… natural sand (see Khan at page 239 section 2.1 teaching Sydney sand was used as fine aggregate).
Regarding claim 17, Herfort in view of Barger and Khan teach the limitations as applied to claim 14 above, and Khan further teaches wherein the coarse aggregate is selected from… crushed stone (see Khan at page 239 section 2.1 teaching the coarse aggregate was… crushed basalt).
Regarding claim 19, Herfort in view of Barger and Khan teach a method of producing the concrete of claim 14 (see Herfort at [0065] teaching the present disclosure relates to a concrete material comprising a cement according to the present disclosure, see Khan at page 240 section 2.2 teaching four concrete mixes have been fabricated),
adding a pozzolanic mixture comprising: an activated clay between 20 and 85% (w/w); a limestone between 10 and 75% (w/w); and a pozzolanic mixture setting regulator between 3 and 15% (w/w); to cementitious composition components, fine aggregates, coarse aggregates, and water (see 112 rejection, and claims 1 and 14 rejections).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Herfort in view of Barger and Khan as applied to claim 14 above, and further in view of Seegebrecht (The Role of Aggregate in Concrete) (“Seegebrecht” hereinafter).
Regarding claim 18, Herfort in view of Barger and Khan teach the limitations as applied to claim 14 above, and Khan further teaches four concrete mixes have been fabricated… the detail of mixes are shown in Table 2 (see Khan at page 240 section 2.2, Table 2 and see claim 14 rejection). The total amount of materials in LC3-15 is 2404.3 kg/m3. There are 16 wt% (or ((388 ÷ 2404.3) x 100) total binder, meeting the claimed “cementitious composition in a concentration of between 15% and 18% (w/w)”. And, there are 7 wt% (or ((174.5 ÷ 2404.3) x 100) water, meeting the claimed water between 5% and 8%.
Khan also teaches there are 26 wt% (or ((620.8 ÷ 2404.3) x 100) fine aggregate, and 51 wt% (or ((1221 ÷ 2404.3) x 100) coarse aggregate.
Herfort in view of Barger and Khan do not explicitly teach the claimed “fine aggregate between 34% and 36% (w/w); a coarse aggregate between 38% and 45% (w/w)”.
Like Khan, Seegebrecht teaches aggregate in concrete (see Seegebrecht at Title teaching the role of aggregate in concrete). Seegebrecht further teaches an optimized gradation based on aggregate availability and project requirements will result in an economical concrete with good workability and finish ability… the proportions between coarse and fine aggregates will change based on the unique characteristics of each aggregate, the placement method, and the finish desired… excessively fine materials will have a higher water demand and typically result in a sticky mix… excessively coarse material will produce harsh mixes that are more difficult to place, consolidate, and finish (see Seegebrecht at page 4 section gradations).
As such, one of ordinary skill in the art would appreciate that the proportions (or amounts) of coarse and fine aggregates is a result effective variable that could be optimized based on project requirement so as to adjust water demand, placement method, and the finish desired.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have optimized the proportions (or amounts) of coarse and fine aggregates as taught by Seegebrecht in the concrete composition as taught by Herfort in view of Barger and Khan based on project requirement so as to adjust water demand, placement method, and the finish desired, and arrive at the claimed “fine aggregate between 34% and 36% (w/w); a coarse aggregate between 38% and 45% (w/w)”.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARITES A GUINO-O UZZLE whose telephone number is (571)272-1039. The examiner can normally be reached M-F 8am-4pm EST.
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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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/MARITES A GUINO-O UZZLE/Examiner, Art Unit 1731
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