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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 09/29/2025 has been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 10/01/2025 was filed after the Request for Continued Examination (RCE) on 09/29/2025. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Response to Amendment
In response to the amendment received on 09/29/2025:
claims 1-12, 22-27 and 29-31 are currently pending;
Examiner notes that the disclosure is missing a Brief Summary of Invention (see MPEP 608.01(d));
the 112(a) rejection to claim 28 is withdrawn in light of the amendment to the claims; and
all prior art grounds of rejection are withdrawn in light of the amendment to the claimed aggregate - “aggregates comprising mine tailings and/or mine waste” in independent claims 1 and 22; however, new grounds of rejection are presented below.
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 26-27 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 26 and 27 both recite the limitation "the sulfide minerals”. There is insufficient antecedent basis for these limitations in both claims.
Examiner suggests amending the claim to either i) include “further comprising sulfide minerals”, or ii) some other clarifying amendment so as to remove the ambiguity as set forth above.
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 1-12, 22-25 and 29-31 are rejected under 35 U.S.C. 103 as being unpatentable over Benck et al. (WO 2022/204059 A1) (“Benck” hereinafter) in view of Romaniuk et al. (US 2022/0195306 A1) (“Romaniuk” hereinafter) and Wu et al. (Effects of sodium sulfate on the hydration and properties of lime-based low carbon cementitious materials, Journal of Cleaner Production, 2019) (“Wu” hereinafter), as evidenced by Hamdy et al. (Hydration and characteristics of metakaolin pozzolanic cement pastes, HBRC Journal, 2018) (“Hamdy” hereinafter) with respect to claims 1, 5-9 and 22.
Regarding claim 1, Benck teaches a formulation for use in the mining industry (see Benck at [0045] teaching various embodiments include cementitious compositions… compositions… include pozzolanic cement blends comprising decarbonized lime, one or more pozzolans, and optionally additional components). The compositions as taught by Benck is taken to meet the claimed formulation based on the structure as outlined below, and the composition is expected to be capable of being use in the mining industry, the formulation comprising:
a lime-based cement extender or cement replacement composition (see Benck at [0045] teaching compositions… include pozzolanic cement blends), including:
lime particles comprising at least one of calcium hydroxide or calcium oxide (see Benck at [0045] teaching said decarbonized lime may be produced using a process wherein the combined CO2 emissions to the atmosphere from chemically bound sources in the raw material and from the combustion fuels is less than 1 kg CO2 per kg lime… said lime may comprise quicklime (calcium oxide, CaO), hydrated lime (calcium hydroxide, Ca(OH)2), and see Benck at [0049] teaching the lime may be in the form of solid particles), and
at least 5% by weight of the composition (see Benck at [0049] teaching the cement blend will contain at least 1% by mass of the lime… most typically the cement blend will contain 10 - 50% by mass of lime in various embodiments) (see MPEP 2144.05(I)), and
pozzolan particles comprising silicon dioxide and aluminum oxide (see Benck at [0045] teaching compositions… include pozzolanic cement blends comprising… one or more pozzolans, see Benck at [00116] teaching specific natural or artificial pozzolans that may be used… include… metakaolin… pozzolan may be in the form of solid particles). Metakaolin particles is taken to meet the claimed pozzolan particles comprising silicon dioxide and aluminum oxide as evidenced by Hamdy (see Hamdy at page 151, right column, section Materials and methods of investigation, paragraph 2 evidencing metakaolin (MK) is a product from dehydroxylation of a clay mineral, and see Hamdy at page 151, right column, Table 1, also shown with Examiner annotation below, evidencing the oxide composition of metakaolin (MK) comprises silicon dioxide (or SiO2) and aluminum oxide (or Al2O3)), and
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forming at least 50% by weight of the composition (see Benck at [00116] teaching cement blend must contain at least 1% by mass of the pozzolan… most typically the cement blend may contain 10 - 80% by mass of pozzolan) (see MPEP 2144.05(I)); and
aggregates (see Benck at [0046] teaching various embodiments also include materials… aggregate),
wherein the formulation has an alumina: silica ratio of at least 0.2:1 (see Benck at [00116] teaching specific natural or artificial pozzolans that may be used… include… metakaolin). Metakaolin is taken to meet the claimed ratio as evidenced by Hamdy (see Hamdy at page 151, right column, Table 1 evidencing the oxide composition of metakaolin (MK) comprises 55.10% silicon dioxide (or SiO2) and 34.10% aluminum oxide (or Al2O3)). The alumina: silica ratio of metakaolin is 34.10: 55.10 or 0.6:1, which meets the claimed “alumina: silica ratio of at least 0.2:1”.
Benck does not explicitly teach that i) the aggregates comprises mine tailings and/or mine waste, and ii) wherein the formulation comprises at least 5,000 ppm of soluble sulfate.
With respect to i), Benck teaches in some embodiments, the cement may include pozzolan… a pozzolan is typically a silicate or aluminosilicate mineral, either naturally occurring or synthesized (man-made)… in various embodiments, one or more types of pozzolan may be used in the cement composition (see Benck at [00115]-[00116]).
Like Benck, Romaniuk teaches cementitious composition comprising pozzolans (see Romaniuk at [0006]-[0007] teaching a method for providing a cementitious product, the method comprising… processing dewatered tailings comprising clay and/or pozzolanic minerals, see Romaniuk at [0117] teaching additionally or alternatively, the calcined tailings and/or mine waste can be subsequently milled or grinded and/or blended with one or more additives (e.g., lime…) to produce a cementitious blend or other composition having certain desired characteristics).
Romaniuk further teaches fluid tailings originating from mine and oil sands operations are often stored in ponds or holding areas prior to treatment, and can be treated with lime to form dewatered tailings (e.g., tailings cake) can be reclaimed… mine wastes originating from overburden and/or interburden… must be processed to access useable ores… these mine wastes can contain the same clay minerals found in associated mine tailings or may be from different geological members and strata unrelated to the ore zones… unlike ore, these wastes are not ground as part of the mine's operations but still need to be managed, and still pose environmental and health risks… embodiments of the present technology can mitigate such economic issues by further treating the dewatered tailings and/or mine wastes to produce products having economic value for multiple industries… embodiments of the present technology can calcine the dewatered tailings and/or mine waste by heating them to or no more than a predetermined temperature to produce a pozzolanic product suitable for use in the concrete or other industry… compositions of embodiments of the present technology can be used for multiple applications… including as a cement binder (see Romaniuk at [0115]-[0117]). Reclaimed mine tailings is taken to meet the claimed i) the aggregates comprises… mine tailings.
As such, one of ordinary skill in the art would appreciate that Romaniuk teaches that reclaimed mine tailings are pozzolanic products that are suitable for use in the concrete industry, that mitigates environmental, health and economic issues and has economic value for multiple industries, and seek those advantages by adding reclaimed mine tailings as in the cementitious composition as taught by Benck.
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 reclaimed mine tailings as taught by Romaniuk in the cementitious composition as taught by Benck because reclaimed mine tailings are pozzolanic products that are suitable for use in the concrete industry that has economic value for multiple industries and mitigates environmental, health and economic issues.
With respect to ii), Benck teaches chemical components may be added to the cement blend… these may include, without limitation… sodium sulfate (see Benck at [00170]).
Like Benck, Wu teaches cementitious composition comprising sodium sulfate and lime (see Wu at title teaching effects of sodium sulfate on hydration and properties of lime-based low carbon cementitious materials).
Wu also teaches to reduce the carbon footprint and energy consumption from the cement manufacturing industry, lime-based low carbon cementitious materials (LCM) has caught strong attention… LCM as a novel low-carbon cement shows impressive performance and promising prospects; however, its mechanical properties are inferior to those of ordinary Portland cement (OPC)… in this disclosure, different dosages of sulfate sodium was incorporated into LCM to investigate the effects of sodium sulfate on LCM performance… the properties and hydration of LCM with and without sulfate sodium were systemically investigated and analyzed… the results revealed that LCM blending with 2–3 wt% sodium sulfate showed the best mechanical performance… the compressive strength of LCM containing 3 wt% sodium sulfate was increased by 57.0% and 20.8% relative to the plain LCM… microstructural characterization showed that a great amount of ettringite had formed at 3 d, which effectively improved the mechanical performance of LCM at early stage… moreover, the addition of sodium sulfate effectively accelerated the hydration of the solid waste in LCM, and more hydrated lime was consumed in the hydration process… sodium sulfate effectively increased the strength of LCM at both early and later stage (see Wu at Abstract). Wu further teaches sodium sulfate is used as freely soluble sulfate to improve the performance of LCM (see Wu at page 678, left column, paragraph 2). 3 wt% sodium sulfate or freely soluble sulfate is taken to meet the claimed ii) wherein the formulation comprises at least 5,000 ppm of soluble sulfate (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).
As such, one of ordinary skill in the art would appreciate that Wu teaches that 3 wt% sodium sulfate or freely soluble sulfate improves the compressive strength and mechanical performance and accelerates the hydration of the cementitious composition comprising lime, and seek those advantages by adding 3 wt% sodium sulfate or freely soluble sulfate in the cementitious composition comprising lime as taught by Benck.
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 3 wt% sodium sulfate or freely soluble sulfate as taught by Wu in the cementitious composition comprising lime as taught by Benck so as to improve the compressive strength and mechanical performance and accelerate the hydration of the cementitious composition comprising lime, and there is a reasonable expectation of success that the disclosed amount of sodium sulfate or freely soluble sulfate as taught by Wu would be suitable.
Regarding claims 2-3 and 12, Benck in view of Romaniuk and Wu teach the limitations as applied to claim 1 above, and Benck in view of Romaniuk and Wu further teach wherein the formulation is configured to achieve a long-term unconfined compressive strength (UCS) at day 28 since formation, and wherein the formulation is configured to achieve a short-term UCS at day 7 that is at least 50% of the long- term UCS (claim 2); wherein the formulation is configured to achieve a long-term unconfined compressive strength (UCS) at day 28 since formation, and wherein the formulation is configured to achieve a short-term UCS at day 7 that is at least 65% of the long-term UCS (claim 3); and wherein an unconfined compressive strength of the formulation 7 days since being formed is at least 1 MPa (claim 12) (since the composition of Benck in view of Romaniuk and Wu and the claimed formulation of claims 1-3 and 12 employ substantially similar materials and process, it is reasonable to believe that the claimed properties (i.e., wherein the formulation is configured to achieve a long-term unconfined compressive strength (UCS) at day 28 since formation, and wherein the formulation is configured to achieve a short-term UCS at day 7 that is at least 50% of the long- term UCS (claim 2); wherein the formulation is configured to achieve a long-term unconfined compressive strength (UCS) at day 28 since formation, and wherein the formulation is configured to achieve a short-term UCS at day 7 that is at least 65% of the long-term UCS (claim 3); and wherein an unconfined compressive strength of the formulation 7 days since being formed is at least 1 MPa (claim 12)) would have naturally flowed following the teaching of Benck in view of Romaniuk and Wu (see MPEP 2112.01).
Regarding claim 4, Benck in view of Romaniuk and Wu teach the limitations as applied to claim 1 above, and Benck further teaches wherein the aggregates comprise at least 9,000 ppm of soluble sulfate (see Benck at [00171] teaching in some embodiments, the cement comprises gypsum… this mineral is primarily composed of calcium sulfate dihydrate). Gypsum is additionally taken to meet the claimed aggregates. Since gypsum mineral is primarily composed of calcium sulfate dihydrate, it is taken to meet the claimed “at least 9,000 ppm of soluble sulfate” (see MPEP 2144.05(I)).
Regarding claims 5-6, Benck in view of Romaniuk and Wu teach the limitations as applied to claim 1 above, and Benck further teaches wherein the alumina: silica ratio is between 0.2:1 and 0.7:1 (claim 5); and wherein the alumina: silica ratio is at least 0.6:1 (claim 6) (see Benck at [00116] teaching specific natural or artificial pozzolans that may be used… include… metakaolin). Metakaolin is taken to meet the claimed ratio as evidenced by Hamdy (see Hamdy at page 151, right column, Table 1 evidencing the oxide composition of metakaolin (MK) comprises 55.10% silicon dioxide (or SiO2) and 34.10% aluminum oxide (or Al2O3)). One of ordinary skill in the art would appreciate that the alumina: silica ratio of metakaolin is 34.10: 55.10 or 0.6:1, which meets the claimed “alumina: silica ratio is between 0.2:1 and 0.7:1 (claim 5)” and alumina: silica ratio is at least 0.6:1 (claim 6).
Regarding claims 7-9, Benck in view of Romaniuk and Wu teach the limitations as applied to claim 1 above, and Benck further teaches wherein the aluminum oxide is configured to react with the soluble sulfate to form ettringite prior to 28 days since formation of the formulation (claim 7); wherein the aluminum oxide is configured to favor formation of calcium sulfoaluminates over formation of calcium sulfates (claim 8); and wherein the aluminum oxide is configured to favor formation of ettringite over formation of thaumasite (claim 9) (see Benck at [00116] teaching specific natural or artificial pozzolans that may be used… include… metakaolin… pozzolan may be in the form of solid particles). Metakaolin comprises aluminum oxide (or Al2O3), as evidenced by Hamdy (see Hamdy at page 151, right column, Table 1). Aluminum oxide (or Al2O3) in metakaolin is expected to be capable of reacting with the soluble sulfate to form ettringite prior to 28 days since formation of the formulation (claim 7); favoring formation of calcium sulfoaluminates over formation of calcium sulfates (claim 8); and favoring formation of ettringite over formation of thaumasite (claim 9).
Regarding claim 10, Benck in view of Romaniuk and Wu teach the limitations as applied to claim 1 above, and Benck further teaches wherein the formulation further comprises admixtures configured to accelerate a chemical reaction between the soluble sulfate of the aggregates and the aluminum oxide of the pozzolan particles (see Benck at [0170] teaching in some embodiments, the cement comprises set accelerating additives… chemical components may be added to the cement blend for the purpose of accelerating the setting time and strength development during hardening… these additives may be used to affect the speed and extent of the pozzolanic reaction, and therefore affect the fresh and hardened properties of the cement… in some embodiments such additives may be used to shorten the setting time). Additives is taken to meet the claimed admixtures. Additionally, it is within the ability of one skilled in the art, with the benefit of the teachings of Benck, to select a suitable additive (or admixture) so as to accelerate a chemical reaction between the soluble sulfate of the aggregates and the aluminum oxide of the pozzolan particles.
Regarding claim 11, Benck in view of Romaniuk and Wu teach the limitations as applied to claim 1 above, and Benck further teaches wherein the formulation further comprises admixtures configured to delay or prevent a chemical reaction between the soluble sulfate of the aggregates and the aluminum oxide of the pozzolan particles (see Benck at [0170] teaching in some embodiments, the cement comprises set accelerating additives… chemical components may be added to the cement blend for the purpose of accelerating the setting time and strength development during hardening… these additives may be used to affect the speed and extent of the pozzolanic reaction, and therefore affect the fresh and hardened properties of the cement… in some embodiments such additives may be used to shorten the setting time). Additives is taken to meet the claimed admixtures. Additionally, it is within the ability of one skilled in the art, with the benefit of the teachings of Benck, to select a suitable additive (or admixture) so as to delay or prevent a chemical reaction between the soluble sulfate of the aggregates and the aluminum oxide of the pozzolan particles.
Regarding claim 22, Benck teaches a method of producing a formulation for use in the mining industry (see Benck at [0045] teaching various embodiments include cementitious compositions… various embodiments also include methods for making and using said materials… compositions… include pozzolanic cement blends comprising decarbonized lime, one or more pozzolans, and optionally additional components). The composition as taught by Benck is taken to meet the claimed formulation based on the structure as outlined below, and the composition is expected to be capable of being use in the mining industry, the method comprising:
providing a lime-based composition including lime particles and pozzolan particles (see Benck at [0045] teaching compositions… include pozzolanic cement blends comprising decarbonized lime, one or more pozzolans, see Benck at [0049] teaching the lime may be in the form of solid particles, and see Benck at [00116] teaching specific natural or artificial pozzolans that may be used… include… metakaolin… pozzolan may be in the form of solid particles),
wherein the lime particles have at least one of calcium hydroxide or calcium oxide (see Benck at [0045] teaching said decarbonized lime may be produced using a process wherein the combined CO2 emissions to the atmosphere from chemically bound sources in the raw material and from the combustion fuels is less than 1 kg CO2 per kg lime… said lime may comprise quicklime (calcium oxide, CaO), hydrated lime (calcium hydroxide, Ca(OH)2)),
wherein the pozzolan particles have silicon dioxide and aluminum oxide (see Benck at [0045] teaching compositions… include pozzolanic cement blends comprising… one or more pozzolans). Metakaolin particles is taken to meet the claimed pozzolan particles comprising silicon dioxide and aluminum oxide as evidenced by Hamdy (see Hamdy at page 151, right column, section Materials and methods of investigation, paragraph 2 evidencing metakaolin (MK) is a product from dehydroxylation of a clay mineral, and see Hamdy at page 151, right column, Table 1, also shown with Examiner annotation below, evidencing the oxide composition of metakaolin (MK) comprises silicon dioxide (or SiO2) and aluminum oxide (or Al2O3)), and
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wherein the lime-based composition has an alumina: silica ratio of at least 0.2:1 (see Benck at [00116] teaching specific natural or artificial pozzolans that may be used… include… metakaolin). Metakaolin is taken to meet the claimed ratio as evidenced by Hamdy (see Hamdy at page 151, right column, Table 1 evidencing the oxide composition of metakaolin (MK) comprises 55.10% silicon dioxide (or SiO2) and 34.10% aluminum oxide (or Al2O3)). One of ordinary skill in the art would appreciate that the alumina: silica ratio of metakaolin is 34.10: 55.10 or 0.6:1, which meets the claimed “alumina: silica ratio of at least 0.2:1”, and
combining the lime-based composition with aggregates to form the formulation (see Benck at [0046] teaching various embodiments also include materials… aggregate).
Benck does not explicitly teach that i) the aggregates comprise mine tailings and/or mine waste, ii) wherein the formulation comprises at least 5,000 ppm of soluble sulfate, and iii) wherein the formulation forms calcium sulfoaluminates prior to 28 days since formation of the formulation.
With respect to i), Benck teaches in some embodiments, the cement may include pozzolan… a pozzolan is typically a silicate or aluminosilicate mineral, either naturally occurring or synthesized (man-made)… in various embodiments, one or more types of pozzolan may be used in the cement composition (see Benck at [00115]-[00116]).
Like Benck, Romaniuk teaches cementitious composition comprising pozzolan (see Romaniuk at [0006]-[0007] teaching a method for providing a cementitious product, the method comprising… processing dewatered tailings comprising clay and/or pozzolanic minerals, see Romaniuk at [0117] teaching additionally or alternatively, the calcined tailings and/or mine waste can be subsequently milled or grinded and/or blended with one or more additives (e.g., lime…) to produce a cementitious blend or other composition having certain desired characteristics).
Romaniuk further teaches fluid tailings originating from mine and oil sands operations are often stored in ponds or holding areas prior to treatment, and can be treated with lime to form dewatered tailings (e.g., tailings cake) can be reclaimed… mine wastes originating from overburden and/or interburden… must be processed to access useable ores… these mine wastes can contain the same clay minerals found in associated mine tailings or may be from different geological members and strata unrelated to the ore zones… unlike ore, these wastes are not ground as part of the mine's operations but still need to be managed, and still pose environmental and health risks… embodiments of the present technology can mitigate such economic issues by further treating the dewatered tailings and/or mine wastes to produce products having economic value for multiple industries… embodiments of the present technology can calcine the dewatered tailings and/or mine waste by heating them to or no more than a predetermined temperature to produce a pozzolanic product suitable for use in the concrete or other industry… compositions of embodiments of the present technology can be used for multiple applications… including as a cement binder (see Romaniuk at [0115]-[0117]). Reclaimed mine tailings is taken to meet the claimed i) the aggregates comprises… mine tailings.
As such, one of ordinary skill in the art would appreciate that Romaniuk teaches that reclaimed mine tailings are pozzolanic products that are suitable for use in the concrete industry, that mitigates environmental, health and economic issues and has economic value for multiple industries, and seek those advantages by adding reclaimed mine tailings as in the cementitious composition as taught by Benck.
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 reclaimed mine tailings as taught by Romaniuk in the cementitious composition as taught by Benck because reclaimed mine tailings are pozzolanic products that are suitable for use in the concrete industry that has economic value for multiple industries and mitigates environmental, health and economic issues.
With respect to ii), Benck teaches chemical components may be added to the cement blend… these may include, without limitation… sodium sulfate (see Benck at [00170]).
Like Benck, Wu teaches cementitious composition comprising sodium sulfate and lime (see Wu at title teaching effects of sodium sulfate on hydration and properties of lime-based low carbon cementitious materials).
Wu also teaches to reduce the carbon footprint and energy consumption from the cement manufacturing industry, lime-based low carbon cementitious materials (LCM) has caught strong attention… LCM as a novel low-carbon cement shows impressive performance and promising prospects; however, its mechanical properties are inferior to those of ordinary Portland cement (OPC)… in this disclosure, different dosages of sulfate sodium was incorporated into LCM to investigate the effects of sodium sulfate on LCM performance… the properties and hydration of LCM with and without sulfate sodium were systemically investigated and analyzed… the results revealed that LCM blending with 2–3 wt% sodium sulfate showed the best mechanical performance… the compressive strength of LCM containing 3 wt% sodium sulfate was increased by 57.0% and 20.8% relative to the plain LCM… microstructural characterization showed that a great amount of ettringite had formed at 3 d, which effectively improved the mechanical performance of LCM at early stage… moreover, the addition of sodium sulfate effectively accelerated the hydration of the solid waste in LCM, and more hydrated lime was consumed in the hydration process… sodium sulfate effectively increased the strength of LCM at both early and later stage (see Wu at Abstract). Wu further teaches sodium sulfate is used as freely soluble sulfate to improve the performance of LCM (see Wu at page 678, left column, paragraph 2). 3 wt% sodium sulfate or freely soluble sulfate is taken to meet the claimed ii) wherein the formulation comprises at least 5,000 ppm of soluble sulfate (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).
As such, one of ordinary skill in the art would appreciate that Wu teaches that 3 wt% sodium sulfate or freely soluble sulfate improves the compressive strength and mechanical performance and accelerates the hydration of the cementitious composition comprising lime, and seek those advantages by adding 3 wt% sodium sulfate or freely soluble sulfate in the cementitious composition comprising lime as taught by Benck.
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 3 wt% sodium sulfate or freely soluble sulfate as taught by Wu in the cementitious composition comprising lime as taught by Benck so as to improve the compressive strength and mechanical performance and accelerate the hydration of the cementitious composition comprising lime and there is a reasonable expectation of success that the disclosed amount of sodium sulfate or freely soluble sulfate as taught by Wu would be suitable.
With respect to iii), the cementitious composition comprising lime, metakaolin, reclaimed mine tailings and sodium sulfate or freely soluble sulfate as taught by Benck in view of Romaniuk and Wu is expected to be capable of the claimed iii) the formulation forms calcium sulfoaluminates prior to 28 days since formation of the formulation.
Alternatively, since the cementitious composition comprising lime, metakaolin, reclaimed mine tailings and sodium sulfate or freely soluble sulfate as taught by Benck in view of Romaniuk and Wu and the claimed method as recited in claim 22 employ substantially similar materials and process, it is reasonable to believe that the claimed properties (i.e., the formulation forms calcium sulfoaluminates prior to 28 days since formation of the formulation) would have naturally flowed following the teaching of Benck in view of Romaniuk and Wu (see MPEP 2112.01).
Regarding claim 23, Benck in view of Romaniuk and Wu teach the limitations as applied to claim 22 above, and Benck teaches further wherein the pozzolan particles comprise at least 35% by weight aluminum oxide (see Benck at [00116] teaching specific natural or artificial pozzolans that may be used… include… metakaolin). Metakaolin is taken to meet the claimed ratio as evidenced by Hamdy (see Hamdy at page 151, right column, Table 1 evidencing the oxide composition of metakaolin (MK) comprises 34.10% aluminum oxide (or Al2O3)). 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 metakaolin comprising 34.10% aluminum oxide (or Al2O3) as taught by Benck and the claimed pozzolan particles comprising at least 35% by weight aluminum oxide.
Regarding claim 24, Benck in view of Romaniuk and Wu teach the limitations as applied to claim 22 above, and Benck teaches further comprising combining the composition with admixtures configured to accelerate formation of calcium aluminum sulfates by accelerating a chemical reaction between soluble sulfate of the aggregates and the aluminum oxide of the pozzolan particles (see Benck at [0170] teaching in some embodiments, the cement comprises set accelerating additives… chemical components may be added to the cement blend for the purpose of accelerating the setting time and strength development during hardening… these additives may be used to affect the speed and extent of the pozzolanic reaction, and therefore affect the fresh and hardened properties of the cement… in some embodiments such additives may be used to shorten the setting time). Additives is taken to meet the claimed admixtures. Additionally, it is within the ability of one skilled in the art, with the benefit of the teachings of Benck, to select a suitable additive (or admixture) so as to accelerate formation of calcium aluminum sulfates by accelerating a chemical reaction between soluble sulfate of the aggregates and the aluminum oxide of the pozzolan particles.
Regarding claim 25, Benck in view of Romaniuk and Wu teach the limitations as applied to claim 22 above, and Benck in view of Romaniuk and Wu teaches further wherein the formulation inhibits formation of calcium sulfoaluminates after 28 days since formation of the formulation (since the composition of Benck in view of Romaniuk and Wu and the claimed formulation of claims 22 and 25 method employ substantially similar materials and process, it is reasonable to believe that the claimed properties (i.e., wherein the formulation inhibits formation of calcium sulfoaluminates after 28 days since formation of the formulation would have naturally flowed following the teaching of Benck in view of Romaniuk and Wu (see MPEP 2112.01).
Alternatively, the composition as taught by Benck in view of Romaniuk and Wu is expected to be capable of inhibiting formation of calcium sulfoaluminates after 28 days since formation of the composition (or formulation)).
Regarding claims 29-30, Benck in view of Romaniuk and Wu teach the limitations as applied to claim 1 above, and Benck in view of Romaniuk and Wu further teach wherein the lime particles, the pozzolan particles, and the aggregates are configured to favor formation of calcium sulfoaluminates (claim 29), and wherein the lime particles, the pozzolan particles, and the aggregates are configured to form calcium sulfoaluminates prior to 28 days since formation of the formulation (claim 30) (the composition as taught by Benck in view of Romaniuk and Wu is expected to be capable of favoring the formation of calcium sulfoaluminates (claim 29) and forming calcium sulfoaluminates prior to 28 days since formation of the formulation (claim 30)).
Alternatively, since the cementitious composition as taught by Benck in view of Romaniuk and Wu and the claimed formulation of claims 1 and 29-30 employ substantially similar materials and process, it is reasonable to believe that the claimed properties (i.e., wherein the lime particles, the pozzolan particles, and the aggregates are configured to favor formation of calcium sulfoaluminates (claim 29), and wherein the lime particles, the pozzolan particles, and the aggregates are configured to form calcium sulfoaluminates prior to 28 days since formation of the formulation (claim 30)) would have naturally flowed following the teaching of Benck in view of Romaniuk and Wu (see MPEP 2112.01).
Regarding claim 31, Benck in view of Romaniuk and Wu teach the limitations as applied to claim 1 above, and Benck in view of Romaniuk and Wu further teach wherein the calcium sulfoaluminates comprise ettringite (the composition as taught by Benck in view of Romaniuk and Wu is expected to be capable of favoring the formation of calcium sulfoaluminates, and see Benck at [00171] teaching gypsum may also be added to aid in the formation of sulfate-containing hardened phases such as… ettringite).
Claims 26-27 are rejected under 35 U.S.C. 103 as being unpatentable over Benck in view of Romaniuk and Wu as applied to claim 1 above, and further in view of Andersen et al. (US 5,549,859) (“Andersen” hereinafter) and Marcelino et al. (Evaluation of pyrite and pyrrhotite in concrete, Ibracon structures and materials journal, 2016) (“Marcelino” hereinafter).
Regarding claims 26-27, Benck in view of Romaniuk and Wu teach the limitations as applied to claim 1 above, but Benck in view of Romaniuk and Wu do not explicitly teach wherein the sulfide minerals comprise iron sulfides (claim 26), and wherein the sulfide minerals comprise pyrite (claim 27).
Like Benck, Andersen teaches a cementitious composition comprising lime (see Andersen at C1 L43-44 teaching the present disclosure relates to hydraulically settable compositions, see Andersen at C19 L48-54 teaching the terms “hydraulically settable binder” or “hydraulic binder,” as used in this specification and the appended claims, are intended to include any inorganic binder (such as… calcium oxide)… which develops strength properties and hardness by chemically reacting with water and, in some cases, with carbon dioxide in the air and water). Anderson also teaches aggregates common in the concrete industry may be used in the hydraulically settable mixtures of the present disclosure… aggregates may be added to increase the compressive strength, decrease the cost by acting as a filler, and affect the particle packing density of the resultant hydraulically settable materials… aggregates are also useful for creating a smooth surface finish, particularly plate-lie aggregates (see Anderson at C29 L41-43
and L50-54).
Andersen further teaches both clay and gypsum are particularly important aggregate materials because of their ready availability, extreme low cost, workability, and ease of formation…clay is a general term used to identify all earths that form a paste with water and harden when dried… however, clays may contain wide variety of other substances such as… pyrite (see Anderson at C30 L15-17, L19-20 and L26-28). Pyrite is taken to meet the claimed wherein the sulfide minerals comprise pyrite (claim 27).
Like Andersen, Marcelino teaches aggregates comprising pyrite (see Marcelino at page 486, right column, paragraph 2 teaching in this disclosure, aggregates containing iron sulfides were used… these aggregate were produced from rock samples, see Marcelina at page 486, right column, section 3.1.1, paragraph 3 teaching aggregate microstructure analysis was conducted to evaluate qualitatively and quantitatively the presents of pyrite). Rock aggregates containing iron sulfide is taken to meet the claimed wherein the sulfide minerals comprise iron sulfides (claim 26).
Marcelino also teaches within this scenario; this disclosure presents a methodology to evaluate the presence of pyrite… in concretes produced with aggregates containing sulfides… the results showed that the amount of pyrite has remained virtually constant over time… this finding indicates that sulfur limits in aggregates should be according to the type of iron sulfide presented and not solely by the total amount of sulfur (see Marcelino at Abstract).
Additionally, 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 clay comprising pyrite and/or rock aggregates containing iron sulfide are suitable aggregate for its intended use.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to replace gypsum in the cementitious composition as taught by Benck by clay comprising pyrite and/or rock aggregates containing iron sulfide as taught by Andersen and Marcelino because clay comprising pyrite and/or rock aggregates containing iron sulfide are suitable for their intended use in cementitious compositions.
Response to Arguments
Applicant’s amendment “aggregates comprising mine tailings and/or mine waste” in independent claims 1 and 22 has obviated the rejection based on the teachings of Benck, Andersen and Wu. However, upon further consideration, new grounds of rejection based on Benck in view of Romaniuk and Wu are set forth for the amended independent claims 1 and 22, respectively, as outlined above. Relevant arguments are addressed below.
Applicant discusses that Benck, Andersen, Wu and Marcelino fail to disclose or suggest “aggregates comprising mine tailings and/or mine waste” in combination with the other features of independent claims 1 and 22, and dependent claim 26, respectively, or one of ordinary skill in the art would not have been motivated to modify Benck, Andersen and Wu (see Applicant’s arguments at page 7 paragraph 4 to page 7).
Examiner acknowledges the arguments and respectfully notes that new grounds of rejection is outlined above based on Benck, Romaniuk and Wu, meeting the “aggregates comprising mine tailings and/or mine waste”. As such, the rejections for the respective independent claims 1 and 22 and their dependent claims are maintained.
Conclusion
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/MARITES A GUINO-O UZZLE/Examiner, Art Unit 1731