DETAILED ACTION
Response to Amendment
In response to the amendment received on 11/06/2025:
claims 22-28 are currently pending
claims 22-28 are added
previously presented claim objection is withdrawn in light of the claim cancelation
new prior art grounds of rejection applying Emmons and FLOWMIX are presented herein
Claim Objections
Claim 26 is objected to because of the following informalities:
in line 8, “to about 2 wt % percent by weight” should read “to about 2 wt %”.
Appropriate correction is required.
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 26 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.
Regarding claim 26, claim 26 recites “ about 20% to about 30% of the one or more acrylic or methacrylic polymer” in lines 2-3. It is unclear whether the amount indicated is referring to weight or volume percent, thus, the claim fails to clearly set forth the metes and bounds of the patent protection desired.
Claim Rejections - 35 USC § 103
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.
The text of those sections of Title 35 U.S. Code not included in this action can be found in a prior Office Action.
Claims 22-26 are rejected under 35 U.S.C. 103 as being unpatentable over Emmons et al. (EP 0047120 A1), hereinafter referred to as EMMONS, in view of Kimura et al. (WO 2005040498 A1) with reference to the provided machine translation, hereinafter referred to as KIMURA.
Regarding claim 1, EMMONS teaches a method for repairing a damaged area of a substrate (see EMMONS at Abstract: the polymer concrete may be used to patch previously formed road pavements), the method comprising:
providing a roadway repair kit, the kit comprising:
a first container configured to contain a pre-mix composition and an aggregate composition (see EMMONS at lines 5-10, p. 6: (1) granular aggregate material in admixture with from 10% to 35% by weight, based on component (1) of binder monomer system; and lines 29-32, p. 10: the polymer concrete compositions may be in the form of two or more packages so that components which will react together on combination are kept in separate packages),
wherein the pre-mix composition comprises:
one or more acrylic or methacrylic polymer precursor binder compounds (see EMMONS at lines 26-28, p. 5: from about 75% to 25% by weight, based on total of monomers, of at least one hydroxyalkyl methacrylate);
one or more fillers (see EMMONS at line 8, p.10: silica flour);
silica sand (see EMMONS at line 1, p.10: silica sand);
one or more pigments (see EMMONS at line 18, p. 11: pigment or dye); and
one or more rheology additives (see EMMONS at line 9, p. 7: polyvalent metal salt or complex);
a second container containing a peroxide radical initiator (see EMMONS at lines 7-9: a preferred polymerization catalyst is a mixture of an organic peroxide and an aromatic amine especially, benzoyl peroxide and N,N-dimethyl p-toluidine; and lines 34 p.10-1, p.11: the aromatic amine accelerator and peroxide may be kept in separate packages);
adding the peroxide radical initiator from the second container to the first container; mixing the pre-mix composition, the aggregate composition, and the peroxide radical initiator; and pouring mixed contents into the damaged area of the substrate thereby filling the damaged area (see EMMONS at lines 29-34, p. 10-1-6, p. 11: the polymer concrete compositions may be in the form of two or more packages so that components which will react together on combination are kept in separate packages; and shipped separately to the site of operations where the respective components may be combined and where the composition of the present invention is to be molded, as by pouring or trowelling to lay or patch a concrete floor or base or pavement).
While EMMONS discloses storing the components of the polymer concrete in separate packages prior to combining at the site of operation, EMMONS is silent with respect to package being shakable container with a resealable lid.
However, KIMURA discloses a repair pavement material set suitable for convenient preparation of a small amount of paving material and a pavement repairing method using the same (see KIMURA at paragraph [2]). KIMURA teaches that the disclosed repair set is suitable for a case of using a small amount of material such as filling in an inspection core hole, which requires less labor and expense, and volume shrinkage due to hardening; and that disclosed repair pavement material set requires fewer special technicians and instruments and can simplify operations and efficiently perform work (see KIMURA at paragraph [10]). KIMURA discloses a repair pavement material set comprising a binder and aggregate (see KIMURA at paragraphs [24-33]). Additionally KIMURA teaches a repairing method for pavement using this repair pavement stand set, opening the lid of the cylindrical container, taking out the small container, and pouring the inside of the small container into the cylindrical container; then closing the lid of the cylindrical container, shaking the cylindrical container to mix the contents including the aggregate and the binder, and supplying the mixture to the pavement repair spot (see KIMURA at paragraph [12]).
Both EMMONS and KIMURA describe road repair systems. According to MPEP § 2144.06(I), "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). Therefore, one of ordinary skill in the art would have recognized the potential benefit of modifying the composition of EMMONS by utilizing resealable shakable container as disclosed by KIMURA, since KIMURA explicitly teaches that disclosed repair pavement material set requires fewer special technicians and instruments and can simplify operations and efficiently perform work (see KIMURA at paragraph [10]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of EMMONS by utilizing resealable shakable container as disclosed by KIMURA in order to utilize fewer special technicians and instruments and simplify operations and efficiently perform work.
Regarding claim 23, EMMONS as modified by KIMURA teaches the method of claim 22, wherein the cure time of the mixed contents from the first shakable container is determined by a ratio of the one or more acrylic or methacrylic polymer precursor binder compounds and the peroxide radical initiator (see EMMONS at lines 23-25, p. 10: the proportion of the organic peroxide to the composition may be in the range of 0.1 to 3 weight percent; and lines 2-7, p. 14: the use of both organic peroxide and aromatic amine accelerator serves to ensure the curing of the formed PC to a solid state in a relatively short time, such as from 5 to 30 min). Based on EMMONS disclosure regrading a range of curing times and a range of amount of peroxide added to the mixture, it would have been obvious to one or ordinary skill in the art that changing amount of the peroxide would result in adjusting the cure time.
Regarding claim 24, EMMONS as modified by KIMURA teaches the method of claim 22, further comprising a third container containing N, N-dimethyl-p-toluidine, adding an amount of N,N-dimethyl-p-toluidine from the third container to the first shakable container (see EMMONS at lines 20-24, p. 12: aromatic amines, for example, N, N-dimethyl-p-toluidine; and lines 29-32, p. 10: the polymer concrete compositions of the invention may be kept in the form of two or more packages so that components which will react together on combination are kept in separate packages).
Regarding claim 25, EMMONS as modified by KIMURA teaches the method of claim 24, wherein the amount of N, N-dimethyl-p-toluidine added to the first shakable container is determined by a size damaged area and a length of time available for completing the repair (see EMMONS at lines 20-27, p. 12: aromatic amines may be used in small amounts and generally accelerate the actin of peroxide, and may be added in an amount of 0.1 to 2 percent by weight of the binder monomer system; and lines 2-7, p. 14: the use of both organic peroxide and aromatic amine accelerator serves to ensure the curing of the formed PC to a solid state in a relatively short time, such as from 5 to 30 min). Based on EMMONS disclosure regarding a range of curing times and varying amount of amine accelerator added to the mixture, it would have been obvious to one or ordinary skill in the art that changing amount of amine accelerator would result in adjusting the cure time.
Regarding claim 26, EMMONS as modified by KIMURA teaches a method of claim 22, wherein the pre-mix composition comprises:
about 25 wt% to about 51 wt% of a solution containing about 20% to about 30% of the one or more acrylic or methacrylic polymer precursor binder compounds (see EMMONS at lines 5-10, p. 6: (1) granular aggregate material in admixture with from 10% to 35% by weight, based on component (1) of binder monomer system). Thus, EMMONS teaches a range of 10-35 % by weight, which overlaps and renders obvious the claimed range. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim. See MPEP §2144.05(I). Furthermore, EMMONS teaches from about 75% to 25% by weight, based on total of monomers, of at least one hydroxyalkyl methacrylate (see EMMONS at lines 26-28, p. 5), which overlaps with the claimed range;
about 18 wt% to about 74 wt% of the one or more fillers;
about 14 wt% to about 57 wt% of the silica sand (see EMMONS at lines 5-10, p. 6: (1) granular aggregate material in admixture with from 10% to 35% by weight, based on component (1) of binder monomer system). Thus, EMMONS teaches granular aggregate material in a range of 65-90 % by weight, which overlaps and renders obvious the claimed range. Furthermore, EMMONS discloses that the aggregate is a particulate or granular material ranging in particle size from about 100 microns to about 2-mesh (U.S. wire screen standard); preferably, a mixture of different-sized graded aggregates is used (see EMMONS at lines 4-5, p. 9); and that examples of suitable aggregates include sand, sand flour (see EMMONS at lines 26-27, p. 9); silica sand (see EMMONS at line 1, p. 10). Additionally, MPEP states that "[w]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation", and “the normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages” (see MPEP § 2144.05(II)(A));
about 0 wt% to about 2.25 wt% of the one or more pigments; and
about 0 wt% to about 2 wt% of the one or more rheology additive.
It is noted, that limitations “0 wt% to about 2.25 wt% of the one or more pigments” and “0 wt% to about 2 wt% of the one or more rheology additive” are optional and not positively required by the claim as set forth.
Allowable Subject Matter
Claim 27 was examined for compliance with requirements of 35 U.S.C. 101.
Claim interpretation: Under the broadest reasonable interpretation (BRI), the terms of the claim are presumed to have their plain meaning consistent with the specification as it would be interpreted by one of ordinary skill in the art. See MPEP §2111.
Step 1: Claim 27 recites “determining the ambient temperature, determining the expected cure time, determining a preparation time, determining a pour time, determining a required cure time and comparing the required cure time to the expected cure time”. Thus, the claim is to a process, which is one of the statutory categories of invention.
Step 2A Prong One: limitations in claim 27 “determining the ambient temperature, determining the expected cure time, determining a preparation time, determining a pour time, determining a required cure time and comparing the required cure time to the expected cure time” recite abstract ideas and fall under a judicial exception (a mental process-type abstract idea).
Step 2A Prong Two: claim 27 recites “comparing the required cure time to the expected cure time; if the expected cure time is greater than or equal to the required cure time, preparing the unmodified composition for roadway repair, and filling the damaged area with the unmodified composition for roadway repair; if the expected cure time is less than the required cure time, preparing a modified composition for roadway repair by mixing all components of the first container, the second container, the third container, and the fourth container, and filling the damaged area with the modified composition for roadway repair”. Thus, the claim recites additional elements beyond the judicial exception, which integrate the exceptions into a practical application.
The claim analysis failed step 2A Prong Two, therefore, claim 27 qualifies as eligible subject matter under 35 U.S.C. 101.
Claims 27-28 are allowed.
The following is an examiner’s statement of reasons for allowance: prior art fails to teach all cumulative limitations of claim 27.
EMMONS (EP 0047120 A1) and KIMURA (WO 2005040498 A1) are considered the closest prior art.
EMMONS discloses the polymer concrete used to patch previously formed road pavements (see EMMONS at Abstract). EMMONS also discloses that polymer concrete compositions of the invention may be in the form of two or more packages so that components which will react together on combination are kept in separate packages; for example, the polyvalent metal salt or complex and hydroperoxide, or the aromatic amine accelerator and peroxide, may be kept in separate packages and shipped separately to the site of operations where the respective components may be combined and where the composition of the present invention is to be molded, as by pouring or trowelling to lay or patch a concrete floor or base or pavement. (see EMMONS at lines 29-34, p. 10-1-6, p. 11).
KIMURA discloses a repairing method for pavement using this repair pavement
stand set, opening the lid of the cylindrical container, taking out the small container, and
pouring the inside of the small container into the cylindrical container; then closing the lid
of the cylindrical container, shaking the cylindrical container to mix the contents including
the aggregate and the binder, and supplying the mixture to the pavement repair spot (see KIMURA at paragraph [12]).
However, EMMONS and KIMURA fail to disclose a method for repairing a damaged area of a substrate comprising determining the ambient temperature, determining the expected cure time, determining a preparation time, determining a pour time, determining a required cure time and comparing the required cure time to the expected cure time. Thus, it would be improper hindsight to further modify EMMONS in view of KIMURA so that the method for repairing a damaged area would be equivalent to the claimed method.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Bunzen et al. (US 20200140602 A1);
Frost et al. (EP 0599733 A1).
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 ANASTASIA KUVAYSKAYA whose telephone number is (703)756-5437. The examiner can normally be reached Monday-Thursday 7:30am-5:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber Orlando can be reached at 571-270-3149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/A.A.K./Examiner, Art Unit 1731
/AMBER R ORLANDO/Supervisory Patent Examiner, Art Unit 1731