Bacement Limited

Patent Trials and Appeals Board

Mar 22, 2022

2021001261 (P.T.A.B. Mar. 22, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/663,500 03/20/2015 Ian Peter Harper EPCLP0154US 1028 23908 7590 03/22/2022 RENNER OTTO BOISSELLE & SKLAR, LLP 1621 EUCLID AVENUE NINETEENTH FLOOR CLEVELAND, OH 44115 EXAMINER BOWMAN, ANDREW J ART UNIT PAPER NUMBER 1717 NOTIFICATION DATE DELIVERY MODE 03/22/2022 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): ipdocket@rennerotto.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte IAN PETER HARPER, PAUL ROY LISTER, and MICHAEL IAN WHEAT ____________ Appeal 2021-001261 Application 14/663,500 Technology Center 1700 ____________ Before DONNA M. PRAISS, JEFFREY R. SNAY, and SHELDON M. McGEE, Administrative Patent Judges. PRAISS, Administrative Patent Judge. DECISION ON APPEAL1 Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1 and 5-14. Final Act. 1. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 In this Decision, we refer to the Specification filed Mar. 20, 2015 (“Spec.”), the Final Office Action dated Nov. 18, 2019 (“Final Act.”), the Appeal Brief filed June 15, 2020 (“Appeal Br.”), and the Examiner’s Answer dated Sept. 21, 2020. 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Bacement Limited as the real party in interest. Appeal Br. 2. Appeal 2021-001261 Application 14/663,500 2 CLAIMED SUBJECT MATTER Appellant’s disclosure is directed to a method of forming concrete comprising forming a mixture of cement and water and applying the mixture to an aggregate laid on a surface to form the concrete. Spec. 1:8-14. According to the Specification, after the cement-based mixture is applied to the aggregate laid on the surface to form the concrete, the concrete begins to cure and harden. Id. at 1:25-26. The Specification describes the advantage of Appellant’s method as reducing waste and cost otherwise resulting from mixing cement, water, and the aggregate to form concrete before applying the concrete to the surface because the cement-based mixture can be used for up to twenty minutes after being formed and the aggregate remains reusable in the event of a prolonged interruption in the application of the cement- based mixture to the aggregate. Id. at 2:5-30. Claim 1, the sole independent claim, illustrates the claimed subject matter and is reproduced below from the Claims Appendix of the Appeal Brief: 1. A method of forming porous concrete that allows liquid to pass directly therethrough, the method comprising the steps of: i) providing cement; ii) providing water; iii) mixing the cement and the water to form a cement- based mixture free of aggregate; iv) after forming the cement-based mixture, applying the cement-based mixture to an aggregate laid on a surface to form the porous concrete; wherein the aggregate includes aggregate particles, and wherein the cement-based mixture has a surface tension coefficient that permits one or more of the following conditions: Appeal 2021-001261 Application 14/663,500 3 • suspension of the cement-based mixture on the aggregate; • suspension of the cement-based mixture around the aggregate; • suspension of the cement-based mixture through the aggregate; and • suspension of the cement-based mixture over the aggregate; in order for the cement-based mixture to form the porous concrete by interacting with the aggregate particles to form nonporous concrete portions and by passing through gaps between the aggregate particles to form porous portions. REJECTIONS Claims 1 and 5-14 are rejected as follows. Final Act. 2-5. Claim(s) 35 U.S.C. § Reference(s)/Basis 1, 5, 9-11 102(a)(1) Fujita3 1, 5, 9-11 103 Fujita 8, 12, 13 103 Fujita 6, 7 103 Fujita, Imbabi4 14 103 Fujita, Hwang5 DISCUSSION Appellant does not separately argue the patentability of dependent claims 5-14. Appeal Br. 6-9. In accordance with 37 C.F.R. § 41.37(c)(1)(iv), and based upon the lack of arguments directed to the subsidiary rejections, claims 5-14 will stand or fall together with independent claim 1 from which they depend. We address below Appellant’s 3 JP 2000-265406, pub. Sept. 26, 2000. Citations herein are to the English language translation dated June 23, 2019 in the record. 4 US 2012/0032107 A1, pub. Feb. 9, 2012. 5 US 5,788,407, iss. Aug. 4, 1998. Appeal 2021-001261 Application 14/663,500 4 arguments directed to the rejections of claim 1 under 35 U.S.C. §§ 102 and 103. Anticipation Rejection of Claim 1 The Examiner finds that Fujita discloses mixing a combination of cement, water, and a thickener onto a bed of pre-laid aggregate to form a porous concrete, thereby meeting one of the four suspension options required by claim 1. Final Act. 2. Appellant argues that Fujita does not anticipate claim 1 because Fujita does not disclose an aggregate-free cement mixture. Appeal Br. 7. Appellant directs us to Fujita’s statement below to support Appellant’s position. Id. The cement paste 13 used here is one in which water and a suitable amount of fine aggregate, thickener and the like are added to the cement and the mixture is kneaded with a mixer to give sufficient fluidity, using a concrete pump etc. Fujita ¶ 12 (emphasis added). Appellant asserts that Fujita does not disclose any other cement paste recipe, let alone one which explicitly omits the use of fine aggregate. Appeal Br. 7. The Examiner responds that (1) Fujita does not require the addition of any aggregate to the disclosed cement paste composition, (2) Fujita’s paragraph 12 must be considered in context, and (3) Fujita’s paragraph 9 reasonably implies that neither a thickener nor aggregate need be used in conjunction with the provided cement paste. Ans. 3-4. Fujita’s paragraph 9 states: “the thickness of the cement paste layer on the surface of the coarse aggregate can be increased by adding a thickener or fine fine aggregate to the cement paste.” Fujita ¶ 9 (emphasis added). The Examiner’s position is that Fujita discloses aggregate and thickeners as separate materials to perform the function of allowing an increase in thickness of the cement paste Appeal 2021-001261 Application 14/663,500 5 and that a person having ordinary skill in the art would recognize that materials not considered aggregates can be used as thickeners. Ans. 4. Appellant’s arguments are not persuasive of error. Fujita’s invention is to lay coarse aggregate on the ground and, after the coarse aggregate layer is formed, a cement paste is dispersed on the layer to flow down the spaces between the coarse aggregates to harden them and bond together. Fujita ¶ 7. According to Fujita, the invention solves the problem of mixing in coarse aggregate with a large particle size to make porous concrete, which coarse aggregate increases the load on the mixer during kneading and also increases the labor for manual placement. Id. ¶ 5. The Examiner’s finding that Fujita discloses using thickener or fine fine aggregate in the cement paste for the purpose of increasing the thickness of the cement paste on the surface of the coarse aggregate is supported by the record. Id. ¶ 9. Appellant does not respond to the Examiner’s finding that aggregate in this context is being used as a thickener and that a person having ordinary skill in the art would have understood that a thickener for cement paste is not necessarily fine aggregate, therefore, Fujita’s disclosure of adding a thickener does not require fine aggregate specifically. Thus, based on the cited record in this Appeal, Fujita’s disclosure does not require aggregate in the cement mixture before is it dispersed on a layer of coarse aggregate. Id. ¶ 7. Consequently, Appellant does not identify harmful error in the Examiner’s analysis. Accordingly, we affirm the rejection of claim 1 as anticipated by Fujita. Appeal 2021-001261 Application 14/663,500 6 Obviousness Rejection of Claim 1 The Examiner alternatively rejects claim 1 under 35 U.S.C. § 103 over Fujita. Final Act. 2-3; Appeal Br. 8. Appellant asserts the Examiner’s obviousness rejection of claim 1 is in error because Fujita fails to disclose forming and applying an aggregate- free cement paste to the coarse aggregate layer. Appeal Br. 8. Appellant asserts that Fujita’s cement paste contains fine aggregate and that there is no rational basis for a person having ordinary skill in the art to conclude from Fujita’s disclosure that an aggregate-free cement should be applied to aggregate. Id. Appellant’s argument is not persuasive of error because Fujita discloses using thickener or fine fine aggregate in the cement paste for the purpose of increasing the thickness of the cement paste on the surface of the coarse aggregate as the Examiner finds. Ans. 4; Fujita ¶ 9. The Examiner also points out that Fujita uses the terms “thickener” and “fine aggregate” as distinct types of materials that are not required to be present in the cement paste because neither are recited in Fujita’s claim 1, but, rather, are separately recited in Fujita’s dependent claims 5 and 6, which each depend from claim 1. Ans. 4 (citing Fujita claims 1, 5, 6). The Examiner’s finding is supported by the record. Fujita claims 1, 5, 6. Appellant does not adequately explain why a person having ordinary skill in the art would not have understood Fujita’s disclosure of a thickener or fine fine aggregate as alternative ingredients for thickening the cement paste. Therefore, the preponderance of the evidence supports the Examiner’s rejection of claim 1 under 35 U.S.C. § 103 over Fujita. Appeal 2021-001261 Application 14/663,500 7 CONCLUSION We AFFIRM the rejections of claims 1 and 5-14 under 35 U.S.C. §§ 102 and 103 over the cited prior art references. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 5, 9-11 102(a)(1) Fujita 1, 5, 9-11 1, 5, 9-11 103 Fujita 1, 5, 9-11 8, 12, 13 103 Fujita 8, 12, 13 6, 7 103 Fujita, Imbabi 6, 7 14 103 Fujita, Hwang 14 Overall Outcome 1, 5-14 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED