DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s election of claims 1, 3–6, 9, 10 and 12 in the reply filed on 22 January 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). The elected claims will be examined along with claims 2, 7, 8, and 13–16, which were identified as linking claims.
Claim 11 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 22 January 2026. It is noted that Applicants did state that they traverse the restriction requirement to the extent of requesting that claim 11 be reinstated upon allowance of linking claim 2, but as this request is already guaranteed by the procedures set forth in MPEP 809.03, and as no additional traversal arguments have been put forth, the election is herein treated as an election without traverse (see MPEP 818.01(d)).
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Objections
Claims 1 and 2 are objected to because of the following informalities:
Claims 1 and 2 each have a “<Method for measuring average particle size>” header (lines 10 and 21, respectively). The header should be removed, such that the claims read, “as measured by the following method: the average particle size is determined…”.
Appropriate correction is required.
Claim Interpretation
Claims 1 and 2 both recite “an average particle size of 10 to 500 nm” as measured by dynamic light scattering (DLS). Typically, DLS is not used to measure individual particle sizes because it cannot differentiate between discrete particles and agglomerates of particles. For this reason, diameters measured using DLS are often recited as hydrodynamic diameters (Dh), which could be larger than the true particle diameter due to particle agglomeration or the formation of a solvation shell of water around the particle(s). In Applicants’ specification, paragraph 0039 explicitly recites the belief that an average particle size within the claimed range can increase the conversion rate of calcium hydroxide in the composition into various desired products. In other words, the particle size is important, not the method by which it is measured or the degree of agglomeration. If prior art teaches an average particle size falling within the claimed range, it should result in a substantially similar composition, regardless of whether or not the size corresponds to discrete particles or agglomerates of smaller particles, and it should not matter if the particle size is measured using DLS, X-Ray diffraction, or electron microscopy; as long as the particle size falls within the claimed range, the conversion rate of calcium hydroxide to desirable products should be increased as suggested by Applicants’ specification. For purposes of examination, the Examiner will herein cite prior art that teaches a comparable composition with particle sizes falling within the claimed range of 10 to 500 nm, regardless of whether or not the particle size was measured using the claimed method.
Claim 2 recites an intended use of the claimed product (lines 26–28, “the aluminosilicate-containing composition being for use in a hydraulic material composition…”, emphasis added), and further limits aspects of the intended use. Claims 7 and 8 each introduce further limitations as to the intended use of the claimed composition. MPEP 2111.02 says that statements of intended use are only considered limiting if they result in a structural difference of the claimed product. In the present case, the aluminosilicate-containing composition is already defined in sufficient detail, and stating that it is intended to be used in a hydraulic material composition does not meaningfully impart any additional structural features. Accordingly, any claim limitations directed towards the intended use of the claimed product will be considered to be met by any prior art that teaches a similar composition, because any similar composition should inherently be capable of being used in the same intended use as claimed.
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.
Claim 6 is 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 6 depends from claim 1, which recites the limitation “at least one of an amine […] or a metal compound”, which implies an amine or a metal compound can be used individually, or in combination. Claim 6 then recites the limitation “wherein the amine and the metal compound are contained in a total amount of 0.01 to 500% by mass” (emphasis added), which leads to indefiniteness because it could be interpreted as (i) either the amine or the metal compound need to be present in the claimed amount; (ii) both the amine and the metal compound must be present, and each must individually fall within the claimed range; or (iii) both the amine and the metal compound must be present, and their combined mass must fall within the claimed range. Because there are three reasonable interpretations of claim 6, the metes and bounds of the claim are unclear. The Examiner believes the broadest reasonable interpretation of the claim is interpretation (i), and so for purposes of examination, the Examiner will interpret claim 6 accordingly. If this interpretation is incorrect, Applicants are respectfully requested to clarify their intended meaning.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 5 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Parent claim 1 recites the inclusion of an amine, which refers to any nitrogen atom with three single-bonded substituents. Claim 5 attempts to further limit the amine to a primary amine, a secondary amine, or a tertiary amine, which would indicate an amine with one, two, or three substituents, respectively. Since amines can only have one, two, or three substituents, this does not meaningfully limit the amine of claim 1. Adding a fourth substituent changes the amine to “ammonium”, which is acidic and is generally recognized as a separate species from amines. A person of ordinary skill in the art (the art here being cement chemistry) would reasonably interpret claim 1’s “amine” as a primary, secondary, or tertiary amine, which means claim 5 is not limiting the amine of claim 1. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
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 1–10 and 12–16 are rejected under 35 U.S.C. 103 as being unpatentable over Bandiera et al. (WO 2022/043349 A1, hereinafter “Bandiera”).
Regarding claim 1, Bandiera teaches a cement composition comprising calcined clay, which is an aluminosilicate, meaning Bandiera teaches an aluminosilicate-containing composition (see generally abstract), comprising an aluminosilicate (see pg. 3, ll. 8–12 teaching calcined clay; also see pg. 8, ll. 36–39 teaching examples of kaolinite and mica, which are both aluminosilicates), and a water-soluble polymer (see pg. 3, l. 15 teaching the use of a polyol, which is a water-soluble polymer; also see pg. 17, ll. 23–27 teaching various water-soluble saccharides, including water-soluble polysaccharides, as examples of suitable polyols).
Bandiera further teaches the limitation wherein the aluminosilicate-containing composition further comprises an amine having a molecular weight of not more than 1,000 (see pg. 13, ll. 36–38 teaching the use of an amine-glyoxylic acid condensates; also see pg. 14, ll. 22–25 teaching these condensates as having a molecular weight ranging from 500–25000 g/mol; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges; it is noted that the alternative limitation “or a metal compound” in this claim does not need to be met because the claim recites “at least one of”, and the amine taught by Bandiera satisfies this requirement).
Regarding the limitation wherein the aluminosilicate-containing composition has an average particle size of 10 to 500 nm, it is first necessary to clarify that claim 1 defines the aluminosilicate-containing composition as comprising an aluminosilicate and a water-soluble polymer, wherein the average particle size of the composition is measured on an aqueous dispersion of the composition. Since the composition comprises, at its simplest, the water-insoluble aluminosilicate and the water-soluble polymer, the only solids remaining in the dispersion would be those of the aluminosilicate, and so the average particle size claimed in claim 1 refers to the size of the aluminosilicate particles. Bandiera teaches a composition comprising a cementitious binder, two supplementary cementitious materials, and various water-soluble polymers and salts (see pg. 3, ll. 4–34). Bandiera fails to explicitly teach the average particle size of all solids in a solution, but teaches the supplementary cementitious materials (SCM) as having a grain size ranging from 50 nm to 1 mm (see pg. 8, ll. 25–29; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges). Bandiera also teaches the importance of maximizing the packing density of the composition in order to improve workability and reduce water demand (see pg. 8, ll. 25–29), and it is well known that smaller particles can pack more densely. A person of ordinary skill in the art before the effective filing date of the claimed invention would reasonably interpret this statement as indicating better results for particles on the smaller end of the disclosed range (50 nm), which overlaps with the claimed range of 10 to 500 nm. The method by which particle size is measured is not considered a meaningful limitation of the claim (see the above Claim Interpretation section). Bandiera therefore teaches all the limitations of claim 1, thus rendering claim 1 obvious.
Regarding claims 3, 4, and 6, Bandiera teaches the aluminosilicate-containing composition according to claim 1, and further teaches amounts of each component that allow for the limitations of claims 3, 4, and 6 to be met. Bandiera teaches the composition as comprising:
a cementitious binder in an amount of 180 to 400 kg/m3 (pg. 3, ll. 4–7);
an SCM in a total amount of 50 to 100 parts by weight relative to the mass of the binder (a) (pg. 3, ll. 8–12), wherein the mass ratio of (b-1) to (b-2) ranges from 0.5 to 2 (pg. 8, ll. 31–33);
an optional aluminum salt (which is herein excluded for being optional; pg. 3, l. 13);
a sulfate source (pg. 3, l. 14), in an amount of 3 to 20 wt.% relative to binder (a) (pg. 13, ll. 13–15);
a polyol in an amount of 0.3 to 2.5 wt.% relative to the amount of binder (a) (pg. 3, l. 15);
an ettringite formation controller (pg. 3, ll. 27–31) in an amount of 0.2 to 2 wt.% relative to the amount of binder (a) (pg. 13, ll. 27–29); and
a co-retarder (pg. 3, ll. 32–34) in an amount of 0.05 to 1 wt.%, relative to the amount of binder (a) (pg. 18, ll. 26–27).
Based on the disclosed amounts of each component relative to the binder component (a), and assuming a volume of 1 m3 in order to use the mass amounts given for binder (a), the following table reflects the ranges of each component:
Component
Minimum Mass (kg)
Maximum Mass (kg)
(a) Cementitious Binder
180
400
(b) Supplementary Cementitious Material
90
400
(b-1) Clay [Aluminosilicate]
30
266.67
(d) Sulfate Source
5.4
80
(e) Polyol [Water-soluble Polymer]
0.54
10
(f) Ettringite Controller [Amine]
0.36
8
(g) Co-Retarder
0.09
4
Total Mass
306.39
1168.67
From the above table, the limitations of claims 3, 4, and 6 can be met. Claim 3 recites the limitation wherein the water-soluble polymer is contained in an amount of 5 to 100% by mass relative to 100% by mass of the aluminosilicate. Assuming the composition comprises 30 kg of aluminosilicate (component b-1), the water-soluble polymer (component e) would need to be present in an amount of 1.5–30 kg to meet the limitations of the claim (5% of 30 kg = 1.5 kg; 100% of 30 kg = 30 kg), which overlaps with the actual allowed range of 0.54–10 kg. Thus, with the ranges disclosed by Bandiera, a person of ordinary skill in the art before the effective filing date of the claimed invention could reasonably arrive at the invention of claim 3.
Claim 4 recites the limitation wherein the aluminosilicate is contained in an amount of 0.01 to 50% by mass in 100% by mass of the aluminosilicate-containing composition. Bandiera teaches the aluminosilicate (b-1) as being present in an amount of from 30–266.67 kg, relative to a total mass of 306.39–1168.67 kg, which corresponds to a content of 9.79–22.82 wt.% of clay relative to the total mass of the composition. This falls within the claimed range, thus meeting the limitations of claim 4.
Claim 6 recites the limitation wherein the amine is contained in a total amount of 0.01 to 500% by mass relative to 100% by mass of the aluminosilicate. This corresponds to components (f) and (b-1), wherein the content of (f) relative to (b-1) ranges from 0.135–26.7 wt.% (0.36 ÷ 266.67 = 0.135%; 8 ÷ 30 = 26.7 wt.%), which falls within the claimed range, thus meeting the limitations of claim 6.
Regarding claim 5, Bandiera inherently meets the limitation wherein the amine is at least one selected from the group consisting of a primary, secondary, or tertiary amine (see pg. 13, ll. 36–38 teaching an amine-glyoxylic acid condensate; also see the above 112(d) rejection of claim 5).
Regarding claims 9 and 10, Bandiera further teaches the limitation wherein the water-soluble polymer has at least one functional group selected from a list that includes hydroxyl groups (see pg. 3, l. 15 teaching a polyol; also see pg. 16, ll. 21–24 teaching the polyol has having multiple hydroxyl groups). Alternatively, Bandiera also teaches the use of a dispersant (see pg. 20, ll. 29–31), which includes water-soluble comb polymers capped with phosphoric acid groups (see pg. 26, Structure IVa). The use of a comb polymer dispersant can also satisfy the limitations of claim 9, and Bandiera further teaches the comb polymer as having a polyoxyalkylene group (see pg. 26, ll. 26–29), which meets the limitation of claim 10.
Regarding claim 11, Bandiera teaches a method for enhancing the early strength of a hydraulically hardened product, the method comprising adding the aluminosilicate-containing composition according to claim 1 to a hydraulic material to obtain a composition (see pg. 3, ll. 4–15, wherein the aluminosilicate is mixed with a hydraulic binder), and hardening said composition (see pg. 31, ll. 30–33; while “hardening” isn’t explicitly mentioned, Bandiera teaches mixing the composition with water, casting it, and measuring the compressive strength on the resulting product, wherein the compressive strength after only 3 hours is already 10 MPa, which indicates a hardened product). The method of claim 11 is therefore taught by Bandiera.
Regarding claims 2, 7 and 8, Bandiera teaches an aluminosilicate-containing composition (see generally abstract), comprising an aluminosilicate and a water-soluble polymer (see pg. 3, ll. 8–12 teaching the use of a calcined clay, which is an aluminosilicate; also see pg. 17, ll. 23–27 teaching the use of water-soluble polysaccharides, which are polymers).
As discussed in the above rejection of claim 1, the “average particle size” refers to the solids that remain in an aqueous dispersion of the composition, so the size of any water-soluble polymers or salts is irrelevant. Bandiera fails to explicitly teach the average particle size of all solids in a solution, but the supplementary cementitious materials would be the only solids present in a composition analogous to the claimed composition. Bandiera teaches the supplementary cementitious materials (SCM) as having a grain size ranging from 50 nm to 1 mm (see pg. 8, ll. 25–29; also see MPEP 2144.05(I) regarding the obviousness of overlapping ranges). Bandiera also teaches the importance of maximizing the packing density of the composition in order to improve workability and reduce water demand (see pg. 8, ll. 25–29), and it is well known that smaller particles can pack more densely. A person of ordinary skill in the art before the effective filing date of the claimed invention would reasonably interpret this statement as indicating better results for particles on the smaller end of the disclosed range (50 nm), which overlaps with the claimed range of 10 to 500 nm. The method by which particle size is measured is not considered a meaningful limitation of the claim (see the above Claim Interpretation section).
Bandiera inherently meets the limitation of claim 2 regarding the intended use of the composition (see the above Claim Interpretation section), because Bandiera’s composition is capable of being used in the claimed hydraulic material composition (see pg. 1, ll. 3–5 teaching the composition as being used to make limestone calcined cement [LC3]). Bandiera therefore meets all limitations of claim 2. The limitations introduced in claims 7 and 8 further limit the intended use of the claimed product, and are also inherently met by Bandiera because Bandiera’s composition is capable of being used as intended.
Regarding claims 13 and 14, Bandiera teaches the aluminosilicate-containing composition according to claim 2. To address the limitations of claims 13 and 14, the compositional table used in the rejections of claims 3, 4 and 6 is reproduced below:
Component
Minimum Mass (kg)
Maximum Mass (kg)
(a) Cementitious Binder
180
400
(b) Supplementary Cementitious Material
90
400
(b-1) Clay [Aluminosilicate]
30
266.67
(d) Sulfate Source
5.4
80
(e) Polyol [Water-soluble Polymer]
0.54
10
(f) Ettringite Controller [Amine]
0.36
8
(g) Co-Retarder
0.09
4
Total Mass
306.39
1168.67
Claim 13 recites the limitation wherein the water-soluble polymer is contained in an amount of 5 to 100% by mass relative to 100% by mass of the aluminosilicate. Assuming the composition comprises 30 kg of aluminosilicate (component b-1), the water-soluble polymer (component e) would need to be present in an amount of 1.5–30 kg to meet the limitations of the claim (5% of 30 kg = 1.5 kg; 100% of 30 kg = 30 kg), which overlaps with the actual allowed range of 0.54–10 kg. Thus, with the ranges disclosed by Bandiera, a person of ordinary skill in the art before the effective filing date of the claimed invention could reasonably arrive at the invention of claim 13.
Claim 14 recites the limitation wherein the aluminosilicate is contained in an amount of 0.01 to 50% by mass in 100% by mass of the aluminosilicate-containing composition. Bandiera teaches the aluminosilicate (b-1) as being present in an amount of from 30–266.67 kg, relative to a total mass of 306.39–1168.67 kg, which corresponds to a content of 9.79–22.82 wt.% of clay relative to the total mass of the composition. This falls within the claimed range, thus meeting the limitations of claim 14.
Regarding claim 15, Bandiera teaches the limitation wherein the water-soluble polymer has at least one functional group selected from a list that includes hydroxyl groups (see pg. 3, l. 15 teaching the use of polyols; also see pg. 16, ll. 21–24 teaching water-soluble polysaccharides as suitable polyols).
Regarding claim 16, Bandiera teaches a method for enhancing the early strength of a hydraulically hardened product, the method comprising adding the aluminosilicate-containing composition according to claim 2 to a hydraulic material to obtain a composition (see pg. 3, ll. 4–15, wherein the aluminosilicate is mixed with a hydraulic binder), and hardening said composition (see pg. 31, ll. 30–33; while “hardening” isn’t explicitly mentioned, Bandiera teaches mixing the composition with water, casting it, and measuring the compressive strength on the resulting product, wherein the compressive strength after only 3 hours is already 10 MPa, which indicates a hardened product). The method of claim 16 is therefore taught by Bandiera.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ryan P Loughran whose telephone number is (571)272-2173. The examiner can normally be reached M, T, Th, F 6:30-4:30.
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/R.P.L./Examiner, Art Unit 1731
/AMBER R ORLANDO/Supervisory Patent Examiner, Art Unit 1731