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 .
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 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.
Claims 2, 4, and 11 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 2 recites the limitation "the unmodified asphalt additive" in the last two lines. There is insufficient antecedent basis for this limitation in the claim.
Claim 4 recites the limitation "the unreacted compound" in the last two lines. There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites the limitation "the compound" in the second line. There is insufficient antecedent basis for this limitation in the claim.
Correction is required.
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.
Claims 2, 5-11, 18-31, and 34-35 are rejected under 35 U.S.C. 103 as being unpatentable over Kurth et al., US 10,731,037 B2 alone.
Regarding claim 2, Kurth teaches an asphalt-containing material comprising:
an asphalt binder composition (column 3 line 5 through column 4 line 3) comprising:
an asphalt binder comprising at least one of a virgin asphalt binder, a reclaimed asphalt binder material comprising asphalt pavement (RAP), or a reclaimed asphalt binder material comprising asphalt shingles (RAS) (column 3 lines 5-14); and
a modified anti-aging agent (polymerized oil) derived from reacting an asphalt additive containing one or more carbonyl groups (fatty acid component) with one or more polyols comprising ethylene glycol (and mixtures thereof; column 3 line 43 through column 4 line 3), wherein the anti-aging agent has a hydroxyl value of about 0 to 400 mg KOH/g (Abstract).
While Kurth discloses a hydroxyl value of about 0 to 400 mg KOH/g but fails to explicitly disclose “greater than about 25 mg KOH/g”, in the case where the claimed ranges overlap ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the hydroxyl value to be greater than about 25 mg KOH/g based on design choice in engineering the asphalt-containing material.
While Kurth fails to explicitly disclose the limitations of “to increase a hydroxyl value of the additive” and “provides a less negative ATc in aged asphalt containing the anti-aging agent after 40 hours of Pressure Aging Vessel aging at 100 degrees Celsius compared to a similarly-aged binder containing the unmodified asphalt additive”, these limitations are results. Since Kurth’s materials are the same as claimed, and the claimed range of hydroxyl value of the reaction product overlaps with the range disclosed in the prior art, it would be obvious that it would yield these results.
Regarding claim 5, Kurth teaches a method for improving the efficacy of an asphalt additive as an anti-aging agent for an asphalt paving mixture (Abstract) comprising reacting a compound comprising one or more carbonyl groups (plant-based oils, including tall oil; column 3 lines 33-39) with one or more polyols comprising ethylene glycol (and mixtures thereof; column 3 line 66 through column 4 line 3) to form an anti-aging agent (polymerized oil), and adding the modified anti-aging agent to an asphalt binder to form an asphalt paving mixture, wherein the asphalt binder comprises a virgin asphalt binder, a reclaimed asphalt binder material comprising asphalt pavement (RAP), or a reclaimed asphalt binder material comprising asphalt shingles (RAS) (column 1 lines 19-22; column 3 lines 5-14; column 8 lines 9-11).
While Kurth discloses the modified anti-aging agent (polymerized oil) having hydroxyl value of about 0 to 400 mg KOH/g (Abstract) but fails to explicitly disclose “greater than about 25 mg KOH/g”, in the case where the claimed ranges overlap ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the hydroxyl value to be greater than about 25 mg KOH/g based on design choice in engineering the asphalt-containing material.
While Kurth fails to explicitly disclose the limitations of “to increase a hydroxyl value of the anti-aging agent” this limitation is a result. Since Kurth’s materials are the same as claimed, and the claimed range of hydroxyl value of the reaction product overlaps with the range disclosed in the prior art, it would be obvious that it would yield this result.
Regarding claims 6 and 7, while Kurth discloses the anti-aging agent (polymerized oil) having hydroxyl value of about 0 to 400 mg KOH/g (Abstract) but fails to explicitly disclose “greater than about 35 mg KOH/g” or “greater than about 50 mg KOH/g”, in the case where the claimed ranges overlap ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the hydroxyl value to be greater than about 35 or 50 mg KOH/g based on design choice in engineering the asphalt-containing material.
Regarding claim 8, since Kurth discloses the anti-aging agent having a desired acid value range of 0 to 50 mg KOH/g (column 4 line 39), the resulting combination includes the acid value being less than about 100.
Regarding claim 9, since Kurth discloses reacting a compound comprising one or more carbonyl groups (plant-based oils, including tall oil; column 3 lines 33-39) with one or more polyols or amine alcohols (polyol; column 3 line 66 through column 4 line 3), the resulting combination includes the limitation claimed.
Regarding claim 10, since Kurth discloses the one or more polyols can include glycerin (which is the same as “glycerine”; column 4 line 4), the resulting combination includes the limitation claimed.
Regarding claim 11, the resulting combination makes obvious the claimed limitation, since Kurth discloses that the starting oil material can include one or more carbonyl groups (plant based oils such as tall oil; column 3 lines 23-39) and that the starting oil can include previously modified oil such as those that have been previously vulcanized or polymerized by other polymerizing technologies, such as maleic anhydride or acrylic acid modified (column 3 lines 52-57), and therefore discloses prior to the reaction with the one or more polyols or amine alcohols, the compound (can be a mixture thereof; column 3 line 50) containing one or more carbonyl groups is reacted with an acid or an anhydride to form a Diels-Alder adduct.
Regarding claim 18, since Kurth discloses that the anti-aging agent can be formed by reacting the fatty acid component (column 3 line 66 through column 4 line 1), the resulting combination includes the limitation claimed.
Regarding claims 19 and 20, since Kurth discloses that the anti-aging agent can be formed from a reaction including tall oil (column 3 line 36), the resulting combination includes the limitations claimed.
Regarding claim 21, Kurth discloses that the anti-aging agent can be formed from a reaction including tall oil (column 3 line 36). While not explicitly disclosing crude tall oil or tall oil pitch, the Examiner took Official Notice in the previous office action that crude tall oil or tall oil pitch are old and well-known in the use of rejuvenating asphalt processes. Applicant failed to challenge the Official Notice in their arguments. Under the guidelines of MPEP 2144.03, to adequately traverse Official Notice, an applicant must specifically point out the supposed errors in the Examiner’s action including stating why the noticed fact is not considered to be common knowledge or well-known in the art. A general allegation that the claims define a patentable invention without any reference to the Examiner’s assertion of Official Notice would be inadequate. Since applicant did not adequately traverse the Examiner’s assertion of Official Notice, the facts are now considered to be admitted prior art (MPEP 2144.03). Applicant’s traversal is considered inadequate because there was no reference to the Examiner’s assertion of Official Notice. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use at least one of crude tall oil or tall oil pitch since they are well-known in the art and commonly available.
Regarding claim 22, since Kurth discloses that the anti-aging agent can be formed from a reaction including hydrocarbon-based compositions (column 3 lines 23-26), and coal is a hydrocarbon, the resulting combination makes obvious the anti-aging agent comprises a compound derived from a coal based material.
Regarding claim 23, since Kurth discloses that the anti-aging agent can be formed from a reaction including petroleum based oil (column 3 lines 23-25), the resulting combination makes obvious the anti-aging agent comprises a compound derived from a petroleum based material.
Regarding claim 24-26, while the resulting combination fails to disclose the limitations claimed, these limitations appear to be a result. Since the resulting combination includes the elements from claim 2, it appears it would yield the results claimed.
Regarding claim 27, the resulting combination includes the limitation claimed, since Kurth’s examples (columns 8 through 13) suggest 3% by weight of the anti-aging agent (oil) relative to the asphalt binder of the asphalt mixture.
Regarding claims 28-30, the resulting combination includes the limitations claimed, since Kurth discloses that the asphalt binder comprises the reclaimed asphalt binder material comprising asphalt pavement, asphalt shingles, and can comprise an aggregate (column 3 lines 5-14).
Regarding claim 31, the resulting combination from claim 30 includes the limitation claimed since Kurth discloses the method of applying the asphalt mixture as a pavement and is compacted (column 8 lines 23-25), and it is obvious that the mixture is applied to a base surface because any asphalt mixture forming a pavement must be applied to a base surface; asphalt pavement does not float in the air.
Claims 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Kurth as applied to claim 2 above in view of Salmonsen et al., US 9,745,472 B2.
Regarding claim 12, the resulting combination includes the anti-aging agent being derived from a reaction product of a compound containing one or more carbonyl groups and one or more polyols. While the resulting combination fails to disclose polyalkylene polyols, Salmonsen teaches asphalt recycling and discloses a rejuvenating additive (which is synonymous with the anti-aging agent) that includes polyalkylene glycol (claim 1). Examiner notes that glycol is a polyol. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the polyol of the resulting combination to include polyalkylene polyol in the form of polyalkylene glycol in view of Salmonsen’s disclosure of an alternate polyol used in rejuvenating asphalt. Additionally, it has been held that selection of a known material based on its suitability for its intended use is a matter of obvious design choice. In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960).
Regarding claim 13, since Salmonsen discloses polyalkylene glycol, the resulting combination includes the limitation claimed.
Claims 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over Kurth in view of Salmonsen as applied to claim 12, further in view of Saylak, US 4,769,288 and Hassan et al., US 2020/0317925 A1.
Regarding claim 14, while the resulting combination fails to disclose polyethylene glycol, Kurth discloses that asphalt ages due to a combination of factors including oxidation, and can lead to increasing brittleness and become more susceptible to cracking (column 6 lines 46-51). Saylak discloses that plasticizers can be used as rejuvenators in recycling asphalt which have become brittle as a result of oxidation (column 5 lines 30-35). Hassan teaches rejuvenating materials for asphalt mixtures and discloses polyethylene glycol is a plasticizer (claim 8). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to include a plasticizer in view of Saylak’s disclosure rejuvenate recycled asphalt that is prone to be more brittle from aging, and to use a plasticizer in the form of polyethylene glycol in view of Hassan’s disclosure as a known plasticizer for rejuvenating asphalt.
Regarding claims 15 and 16, while the resulting combination fails to disclose polyethylene glycol, Kurth discloses that asphalt ages due to a combination of factors including oxidation, and can lead to increasing brittleness and become more susceptible to cracking (column 6 lines 46-51). Saylak discloses that plasticizers can be used as rejuvenators in recycling asphalt which have become brittle as a result of oxidation (column 5 lines 30-35). Hassan teaches rejuvenating materials for asphalt mixtures and discloses polyethylene glycol is a plasticizer (claim 8). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the resulting combination to include a plasticizer in view of Saylak’s disclosure rejuvenate recycled asphalt that is prone to be more brittle from aging, and to use a plasticizer in the form of polyethylene glycol in view of Hassan’s disclosure as a known plasticizer for asphalt. The inclusion of both claims shows a lack in criticality of the state (solid or liquid) of the polyethylene glycol. The Examiner took Official Notice in the previous office action that liquid, wax, or solid polyethylene glycol are old and well-known. Applicant failed to challenge the Official Notice in their arguments. Under the guidelines of MPEP 2144.03, to adequately traverse Official Notice, an applicant must specifically point out the supposed errors in the Examiner’s action including stating why the noticed fact is not considered to be common knowledge or well-known in the art. A general allegation that the claims define a patentable invention without any reference to the Examiner’s assertion of Official Notice would be inadequate. Since applicant did not adequately traverse the Examiner’s assertion of Official Notice, the facts are now considered to be admitted prior art (MPEP 2144.03). Applicant’s traversal is considered inadequate because there was no reference to the Examiner’s assertion of Official Notice. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use either liquid, wax, or solid polyethylene glycol since they are all alternatives of the same product.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Kurth as applied above to claim 2 in view of CN 103804931 (hereinafter will be referred to as “CN ‘931”).
Regarding claim 17, while the resulting combination includes the anti-aging agent being derived from a reaction product of a compound containing one or more carbonyl groups and one or more polyols but fails to disclose amine alcohols, CN ‘931 teaches aging resistance in asphalt compositions and discloses reacting an oil (one or more carbonyl groups) with an amine alcohol ([0013], [0022]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the anti-aging agent to be derived from a reaction product of a compound containing one or more carbonyl groups (the fatty acid component) with an amine alcohol in view of CN ‘931’s disclosure to result in an alternate type of anti-aging agent.
Claims 36-38 are rejected under 35 U.S.C. 103 as being unpatentable over Kurth as applied above to claim 2 in view of Forest, WO 2018/217749 A1.
Regarding claim 36, while Kurth fails to disclose that the compound comprising one or more carbonyl groups contains unsaturation, Forest teaches asphalt compositions and discloses that suitable fatty acids can be saturated or unsaturated ([0112]). Since Kurth discloses the polymerized oil and that polymerization can be achieved by reacting a fatty acid containing material with a polyol (column 4 lines 1-3), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose an unsaturated fatty acid in view of Forest’s disclosure since fatty acids can be saturated or unsaturated and there is no criticality in either choice.
Regarding claims 37-38, while Kurth fails to disclose rosin or rosin acid, Kurth discloses the polymerized oil (the anti-aging agent) and that polymerization can be achieved by reacting a fatty acid containing material with a polyol. Forest teaches asphalt compositions and discloses that fatty acids can optionally rosin acids ([0112]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the fatty acid of the resulting combination to include rosin acid in view of Forest’s disclosure based on design choice in engineering the asphalt-containing material since that is a known optional component. The resulting combination includes anti-aging agent being derived from rosin or rosin acid, since rosin is a natural resin and rosin acid is the primary active constituent of that resin, so the anti-aging agent being derived from rosin acid includes being derived from rosin.
Claims 4 and 34-35 are rejected under 35 U.S.C. 103 as being unpatentable over Kurth et al., US 10,731,037 B2 in view of Forest, WO 2018/217749 A1.
Regarding claim 4, Kurth teaches a method capable of being used for forming and improving the long term efficacy of an asphalt paving mixture (paving; Abstract) comprising reacting a compound comprising one or more carbonyl groups (plant-based oil; column 3 line 44) with one or more polyols comprising ethylene glycol (column 3 line 66 through column 4 line 3) and form a modified anti-aging agent (polymerized oil) that has a hydroxyl value of about 0 to 400 mg KOH/g (Abstract).
While Kurth discloses a hydroxyl value of about 0 to 400 mg KOH/g but fails to explicitly disclose “greater than about 25 mg KOH/g”, in the case where the claimed ranges overlap ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the hydroxyl value to be greater than about 25 mg KOH/g based on design choice in engineering the asphalt-containing material.
Kurth further discloses adding the modified anti-aging agent to reclaimed asphalt pavement (RAP) or reclaimed asphalt shingles (RAS) and then further mixing with virgin asphalt to form the asphalt paving mixture, (“applying the emulsion to treat RAS or RAP and further mixing the treated RAS or RAP with virgin asphalt thereby obtaining a rejuvenated asphalt blend”; column 8 lines 9-11). While the resulting combination fails to disclose adding the modified anti-aging agent to a virgin asphalt binder and a reclaimed asphalt binder material (RAP or RAS), Forest teaches asphalt compositions and discloses that the rheology modifier (which is an anti-aging agent) can be combined with the RAS or RAP, and as an alternative, the rheology modifier can be combined with virgin asphalt and RAS or RAP to give a modified asphalt product ([0119]) and that the asphalt composition can be made by combining components in any order ([0124]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kurth’s order of mixing the modified anti-aging agent, RAP or RAS, and virgin asphalt to be adding the modified anti-aging agent to virgin asphalt binder and a reclaimed asphalt binder material comprising RAP or RAS in view of Forest’s disclosure that these methods are alternatives since the components can be combined in any order.
While the resulting combination fails to explicitly disclose the limitations of “to increase a hydroxyl value of the anti-aging agent” and “provides a less negative ATc in aged asphalt containing the anti-aging agent after 40 hours of Pressure Aging Vessel aging at 100 degrees Celsius compared to a similarly-aged binder with the unreacted compound containing one or more carbonyl groups”, these limitations are results. Since the materials of the resulting combination are the same as claimed, it would be obvious that the resulting combination would yield these results.
Regarding claim 34, Kurth teaches an asphalt containing paving material (Abstract) comprising:
an asphalt binder composition (column 3 line 5 through column 4 line 3) comprising:
an asphalt binder comprising a virgin asphalt binder and a reclaimed asphalt binder material comprising reclaimed asphalt pavement (RAP) reclaimed asphalt shingles (RAS) (column 3 lines 5-14; column 8 lines 9-11); and
an anti-aging agent (polymerized oil) that is a reaction product (column 3 line 66 through column 4 line 3) of ingredients including (i) a first material comprising a compound containing one or more carbonyl groups of the first material (column 3 lines 23-39. It is noted that Applicant’s specification discloses that tall oil is an ingredient of a carbonyl group, which Kurth discloses in column 3 line 36) and (ii) a second material comprises ethylene glycol (column 3 line 66 through column 4 line 3) that reacts with the one or more carbonyl groups of the first material, wherein the anti-aging agent has a hydroxyl value of about 0 to 400 mg KOH/g (Abstract).
While Kurth discloses a hydroxyl value of about 0 to 400 mg KOH/g but fails to explicitly disclose “greater than about 25 mg KOH/g”, in the case where the claimed ranges overlap ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the hydroxyl value to be greater than about 25 mg KOH/g based on design choice in engineering the asphalt-containing material.
While Kurth fails to disclose that the compound in the first material contains unsaturation, Forest teaches asphalt compositions and discloses that suitable fatty acids can be saturated or unsaturated ([0112]). Since Kurth discloses the polymerized oil and that polymerization can be achieved by reacting a fatty acid containing material with a polyol (column 4 lines 1-3), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose an unsaturated fatty acid in view of Forest’s disclosure since fatty acids can be saturated or unsaturated and there is no criticality in either choice.
The resulting combination includes the asphalt-containing paving material comprising about 0.5 wt.% to about 15 wt% of the anti-aging agent relative to the asphalt binder, since Kurth’s examples (columns 8 through 13) suggest 3% by weight of the anti-aging agent relative to the asphalt binder of the asphalt mixture.
While the resulting combination fails to explicitly disclose the limitation of “adds hydroxyl groups” to the reaction product, this limitation is a result. Since the materials of the resulting combination are the same as claimed, and the claimed range of hydroxyl value of the reaction product overlaps with the range disclosed in the prior art, it would be obvious that it would yield these results.
Regarding claim 35, Kurth teaches a method capable of slowing the long term aging effects (column 6 lines 46-51) of an asphalt-containing paving material (Abstract) comprising:
forming an asphalt binder composition (column 3 line 5 through column 4 line 3) by adding an anti-aging agent (polymerized oil) to an asphalt binder (column 5 lines 50-63), wherein the asphalt binder comprises a virgin asphalt binder and a reclaimed asphalt binder material comprising reclaimed asphalt pavement (RAP) or reclaimed asphalt shingles (RAS) (column 3 lines 5-14; column 8 lines 9-11); and
wherein the anti-aging agent is a reaction product (column 3 line 66 through column 4 line 3) of ingredients including (i) a first material comprising a compound containing one or more carbonyl groups (column 3 lines 23-39. It is noted that Applicant’s specification discloses that tall oil is an ingredient of a carbonyl group, which Kurth discloses in column 3 line 36) and (ii) a second material comprising ethylene glycol (and mixtures thereof; column 3 line 66 through column 4 line 3) that reacts with the one or more carbonyl groups of the first material, wherein the anti-aging agent has a hydroxyl value of about 0 to 400 mg KOH/g (Abstract).
While Kurth discloses a hydroxyl value of about 0 to 400 mg KOH/g but fails to explicitly disclose “greater than about 25 mg KOH/g”, in the case where the claimed ranges overlap ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the hydroxyl value to be greater than about 25 mg KOH/g based on design choice in engineering the asphalt-containing material.
While Kurth fails to disclose that the compound in the first material contains unsaturation, Forest teaches asphalt compositions and discloses that suitable fatty acids can be saturated or unsaturated ([0112]). Since Kurth discloses the polymerized oil and that polymerization can be achieved by reacting a fatty acid containing material with a polyol (column 4 lines 1-3), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose an unsaturated fatty acid in view of Forest’s disclosure since fatty acids can be saturated or unsaturated and there is no criticality in either choice.
While Kurth fails to explicitly disclose the limitation of “adds hydroxyl groups” to the reaction product, this limitation is a result. Since Kurth’s materials are the same as claimed, and the claimed range of hydroxyl value of the reaction product overlaps with the range disclosed in the prior art, it would be obvious that it would yield these results.
Response to Arguments
Applicant's arguments filed 12/12/2025 have been fully considered but they are not persuasive. Applicant argues that Kurth looks at a different aging problem and makes measurements using different equipment, parameters, and exposure time than Applicant. Claiming a difference in ΔTc from a specific Pressure Aging Vessel aging test, is as stated above in the rejections, a result. Kurth does not need to have performed that same test to be an applicable prior art reference. The claims have not been written to differentiate from Kurth.
Applicant argues that Salmonsen is not germane to Applicant’s claims or to Kurth because Salmonsen’s glycols are not for reacting but merely for diluting. This argument is not persuasive because this is an argument of bodily incorporation. The rejection does not require Salmonsen’s method. Kurth already discloses a polyol for reacting. The rejection makes obvious that a known alternative polyol used as disclosed by Kurth.
Applicant asserts that the sulfur plasticizers briefly mentioned in Saylak and the alginate shell plasticizers mentioned in Hassan are not germane to the polyalkylene glycol reactants recited in Applicant’s claims 14-16. This is not found persuasive since, as stated above in the rejection, Saylak discloses the concept of using a plasticizer to rejuvenate recycled asphalt that is prone to be more brittle from aging, and Hassan discloses a plasticizer in the form of polyethylene glycol in rejuvenating materials for asphalt.
Applicant argues against the use of Hellsten. This argument is moot since Hellsten is no longer relied on in the rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See attached Notice of References Cited sheet. Puchalski et al., US 2018/0265704 teaches an anti-aging agent comprising one or more of the claimed polyols.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE J CHU whose telephone number is 571-272-7819. The examiner can normally be reached M-F generally 9:30-5:30.
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/KATHERINE J CHU/Examiner, Art Unit 3671
/CHRISTOPHER J SEBESTA/Supervisory Patent Examiner, Art Unit 3671