Ex Parte Amey et alDownload PDFPatent Trial and Appeal BoardJun 19, 201311678117 (P.T.A.B. Jun. 19, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/678,117 02/23/2007 Stephen L. Amey MBC-5891 1158 23575 7590 06/19/2013 CURATOLO SIDOTI CO., LPA 24500 CENTER RIDGE ROAD, SUITE 280 CLEVELAND, OH 44145 EXAMINER MARCANTONI, PAUL D ART UNIT PAPER NUMBER 1731 MAIL DATE DELIVERY MODE 06/19/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte STEPHEN L. AMEY, ANTHONY A. SCHLAGBAUM, and BRUCE J. CHRISTENSEN ____________ Appeal 2013-005085 Application 11/678,117 Technology Center 1700 ____________ Before CATHERINE Q. TIMM, BEVERLY A. FRANKLIN, and JAMES C. HOUSEL, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from the Examiner's rejection of claims 1, 3-12, 14-23, and 38-42. We have jurisdiction under 35 U.S.C. § 6. STATEMENT OF THE CASE Claim 1 is representative of the subject matter on appeal and is set forth below: Appeal 2013-005085 Application 11/678,117 2 1. A method for supplying adjustable ratios of admixture raw materials to a cementitious composition to generate performance characteristics comprising: a. providing values for material and process variable related to the performance characteristics of the cementitious composition; b. calculating proportional amounts of at least two admixture raw materials required to provide the performance characteristics; c. adjusting the ratio of the at least two admixture raw materials to be dispensed to the cementitious composition; and d. dispensing the at least two admixture raw materials on demand to the cementitious composition according to the adjusted ratio. The prior art relied upon by the Examiner in rejecting the claims on appeal is: Kreinheder et al. (Kreinheder) 6,224,250 B1 May 1, 2001 THE REJECTION Claims 1, 3-12, 14-23, and 38-42 are rejected under 35 U.S.C. §103(a) as being unpatentable over Kreinheder. ANALYSIS As an initial matter, Appellants have not presented separate arguments for all of the rejected claims. Rather, Appellants’ arguments are principally directed to independent claim 1. Any claim not separately argued will stand or fall with the argued claims from which it depends. See 37 C.F.R. § 41.37(c)(1) (vii). Appeal 2013-005085 Application 11/678,117 3 We adopt the Examiner’s findings pertinent to the issues raised by Appellants. We, therefore, incorporate the Examiner’s position as set forth in the Answer in its entirety. We add the following for emphasis only and to address Appellants’ Reply Brief thoroughly. Appellants argue that claim 1 requires, inter alia, “admixture raw materials.” Appellants argue that this limitation is to be distinguished from “admixture product” or “finished product” as set forth in Kreinheder. Br. 12-17. Reply Br. 4-11. We first refer to Appellants’ Specification regarding the definition of the claim term “admixture raw materials.” On page 5, beginning at line 26, Appellants’ Specification discloses: It should be noted that the use of "admixture raw material" is not meant to exclude components that are formulated with the admixture material that may affect the properties of an admixture solution such as pH, stability, or solubility. Therefore, the term "admixture raw material" can include components in addition to the chemical that provides the special effect to the cementitious composition and can include multiple components that are combined to provide the special effect, as is conventional in the art. "Admixture raw material" is distinguished from an admixture formulation that includes more than one admixture chemical that produces the desired effects, plus other compounds such as those needed to stabilize the formulation. Hence, according to Appellants’ Specification, the term "admixture raw material" can include components in addition to the chemical that provides the special effect to the cementitious composition, and can include multiple components that are combined to provide the special effect, as is conventional in the art. Also, the term excludes more than one admixture Appeal 2013-005085 Application 11/678,117 4 chemical. We interpret this claim term in light of the Specification as discussed herein. Turning now to Kreinheder, Kreinheder discloses that a “raw material” can be combined with “water and/or another raw material” to provide a finished product. Kreinheder, col. 4, ll. 27-31. Thus, Kreinheder does not require that the raw material be mixed with another raw material because of the language “and/or”, in making the “finished product.” In another embodiment, Kreinheder teaches that there may be instances in which a raw material can be dispensed directly into a holding tank at the customer site without having to be adjusted or diluted with water or without being combined with another raw material. Kreinheder, col. 5, ll. 14-18. These teachings support the Examiner’s position that Kreinheder provides for the claimed “admixture raw material” when the “raw material” is not mixed with another raw material. When water is used, Kreinheder teaches in column 8, beginning at line 50, the following: It is further contemplated that all known raw materials and finished cement additive and concrete admixture products may be used in the manufacturing process and system of the present invention, preferably in their liquid form. Thus, further exemplary systems and processes of the invention involve the use of water (represented by the faucet at 88 in FIG. 1) provided or sourced at the destination site (which could be the user's remote manufacturing facility or it could be a customer's site such as a cement grinding plant or concrete-ready mix plant), to adjust raw materials or finished product. Accordingly, a valving/pump 82 device and/or metering device 84, and optionally an on-board water holding tank 86, Appeal 2013-005085 Application 11/678,117 5 is provided on the frame for the purposes of allowing water 88 to be added (preferably at a controlled, monitored rate/amount) into the blender 50, to be combined with one or more raw materials, and/or to permit raw materials in the tanks or in the blender, or finished product, to be adjusted or modified, e.g., such that desired total solids, viscosity, pH, specific gravity, volume, and/or other physical characteristics can be provided according to a given specification, such as a customer's profile (e.g., desired requirements). Kreinheder, col. 8, l. 50 through col. 9, l. 4. As indicated above, Kreinheder teaches that one raw material can be mixed with water in blender 50 (shown in Figure 1 of Kreinheder), and that modification of the physical characteristics of the raw material, such as total solids, viscosity, pH, specific gravity, volume, and/or other physical characteristics, can be done, according to the customer profile. Appellants then argue that “[t]here is no teaching or suggestion to separately adjust individual admixture raw materials for batched concrete compositions.” Br. 16. However, as discussed above, Kreinheder teaches to adjust an individual admixture raw material according to the customer profile (desired requirements). Id. Appellants then state that: Kreinheder is clearly concerned with preparing a finished admixture formulation that is stored in a storage tank and subsequently dispensed into a cementitious composition. There is no teaching, suggestion or motivation found anywhere in Krienheder [sic, Kreinheder] that there is flexibility for adjustment of the finished admixture preformulation after it has been finished and stored in the storage tank. There is not a single passage in the Kreinheder Appeal 2013-005085 Application 11/678,117 6 reference to support this vague and conclusory statement that the finished admixture formulation containing a blend of multiple admixture raw materials could be subsequently adjusted. The disclosure of a computer and the presence of raw materials on the job site are merely used to prepare the initial admixture preformulation. There is no teaching or suggestion to separately adjust individual admixture raw materials for batched concrete compositions. materials for batched concrete compositions. Because Kreinheder contemplates dispensing a pre-formulated finished admixture product into a concrete composition, the end customer cannot take into account batch to batch variations in concrete compositions and then adjust admixture raw materials that are dispensed into the concrete composition on demand in real time based on the observed batch-to-batch variations [emphasis added]. The end customer also cannot control the sequence of addition of separate admixture raw materials, simply because the raw materials have already been blended by a blender into a finished admixture product. Consequently, the only adjusting ability available to the end customer is to prepare an entirely new pre-formulated, finished admixture composition. In contrast, the present invention allows for the continuous on-demand adjustment of individual admixture raw material components in order to compensate for continual variances that affect concrete performance characteristics. Thus, adjustments are able to be made from one batch to the next batch to compensate for real-time environmental fluctuations and concrete material variability. This is simply not possible with the pre-formulated admixtures of Krienheder [sic, Kreinheder]. Br. 16-17. As indicated above, Appellants admit that Kreinheder contemplates dispensing into a concrete composition. However, Appellants argue that it is a pre-formulated finished admixture that is dispensed in Kreinheder, rather than an admixture raw material as claimed. However, for the reasons Appeal 2013-005085 Application 11/678,117 7 discussed supra, Kreinheder also contemplates dispensing a raw material.1 We add that Kreinheder further teaches that it is possible to disconnect a raw materials tank and to hook-up another tank containing a different raw material, if desired. Kreinheder, col. 13, ll. 49-52. This is yet another teaching by Kreinheder, that buttresses the Examiner’s interpretation of Kreinheder, that raw materials can be dispensed on demand, according the customer profile on site. In view of the above, Appellants have not convinced us of error in the Examiner’s decision, and we thus affirm the rejection. CONCLUSIONS OF LAW AND DECISION The rejection is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED cam 1 While Appellants admit that Kreinheder contemplates dispensing into a cementitious composition, Appellants appear to also argue that there is a distinction between dispensing into a cementitious composition versus into a storage/holding tank. Reply Br. 11. However, Appellants have not convinced us that such a difference is an unobvious one. In the latter situation (dispensing into a storage/holding tank), the composition is on route to the cementitious composition on site, to be dispensed therein. In either scenario, the contents are the result of customer profile requests (based on real time, on demand, observations). Copy with citationCopy as parenthetical citation