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 .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.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 6, 8, 12-16, 18 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The amendment filed 11/12/2025 introduces the negative limitation “wherein the asphalt concrete does not include an emulsion or added water”. This limitation is not supported by Specification. Because the Specification does not recite a “non-aqueous” composition, the claim limitation can not imply nor require a water-free composition.
Further, [0030] of the instant application does in fact recite “Other additives (108d) can include, but are not limited to, emulsion agents”. Therefore, the claim limitation cannot imply nor require an “emulsion-free” composition, when in fact “emulsion agents” can in fact be added to the binder composition.
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 6, 8, 12-16, 18 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.
The term “high” in claim 6 is a relative term which renders the claim indefinite. The term “high volatile solvent additive” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The Specification only provides antecedent basis for “volatile solvent additive” such as diesel fuel, gasoline, kerosene. See [0006]. Therefore, the limitation is examined as before.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 6, 8, 12, 13, 16, 18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by McDade et al. US 2013/0195551. McDade discloses an asphaltic
concrete mixture comprising:
One or more types of aggregate such as natural and manufactured limestone. [0009].
A bituminous mixture including naturally occurring asphalt, a rejuvenator/recycling agent
having a maltene component, such as resins, aromatic oils or saturate oils and
combinations thereof. [0032-34].
And a volatile solvent such as kerosene or naphtha of at least 0.4% by volume of the bituminous mixture.
With respect to claims 12, 13, 18 McDade et al. discloses the bituminous mixture can include a combination of limestone and other aggregates, such as sand [0009]; and can
be a rejuvenating asphalt emulsion, which includes a maltene recycling agent. [0034].
With respect to claim 16 McDade discloses a method of making LRA asphalt comprising the steps of:
Adding the binder cited above with respect to claim 6 above, with an aggregate mixture including natural and manufactured/(rap) limestone aggregate and sand. [0009, 52-78].
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 14, 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over McDade et al. US 2013/0195551. McDade discloses an asphaltic concrete mixture comprising: One or more types of aggregate such as natural and manufactured limestone. [0009]. A bituminous mixture including naturally occurring asphalt, a rejuvenator/recycling agent having a maltene component, such as resins, aromatic oils or saturate oils and combinations thereof. [0032-34].
A volatile solvent such as kerosene or naphtha of at least 0.4% by volume of the
bituminous mixture.
Wherein the amount of volatile solvent and soft asphalt is sufficient to extend the stockpile life of cold mix asphalt. [0099]. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to
Response to Arguments
Applicant’s arguments with respect to claim(s) 6, 8, 12-16, 18 have been considered but are not persuasive. As cited above the negative recitation prohibiting water and/or emulsions is not supported by the Specification which does not utter the words, “water” or “non-aqueous” or “water-free”. Therefore, the claimed limitation cannot be seen to patentably distinguish over an asphalt concrete “comprising” a binder including an emulsion or water, since such is not expressly recited in the Specification.
Therefore, the arguments and not persuasive and the rejection is maintained.
Conclusion
9. Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAYMOND W ADDIE whose telephone number is (571)272-6986. The examiner can normally be reached on m-f 7:30-12:30, then 6-9pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chris Sebesta can be reached on 571-272-0547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you need help from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/RAYMOND W ADDIE/Primary Examiner, Art Unit 3671 12/04/2025