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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 20 December 2022 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the Office.
The information disclosure statement (IDS) submitted on 20 February 2023 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement has been considered by the Office.
Claim Objections
Claim 17 is objected to because of the following informalities:
Chemical compounds “Isocyanate” and “Hexanedioic acid polymer” are improperly capitalized.
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.
Claims 17-32 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.
As to Claim 17: Claim 17 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential elements, such omission amounting to a gap between the elements. See MPEP § 2172.01. The omitted elements are: asphalt or bitumen. The claim is drawn to an “asphalt composition” which is defined in the specification as synonymous with “asphalt”, “bitumen”, “asphalt binder”, and “asphalt composition”. Which is different from an “asphalt mix composition” in that the mix composition further includes aggregates. For the purposes of further examination an “asphalt composition” is considered to necessarily include asphalt ([0034, 0044, Sample 6, 0189]) within the composition although the open ended “comprising” and further discussion about optional additives [0095] leaves room for additional components.
As to Claim 30: The claim is drawn to a method. However, the only method is “utilizing the asphalt composition according to claim 17 for the preparation of an asphalt mix composition. The claim fails to positively recite any method steps and instead appears to be drawn to a use of the composition.
Claim 31 recites the limitation "the granular material" in Line 1. There is insufficient antecedent basis for this limitation in the claim.
As to Claim 32: The claim is drawn to a method and is dependent upon a method. However, the claim does not introduce any new method steps but instead appears to be drawn to a use “for pavement applications”.
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 17-20, 22-27 are rejected under 35 U.S.C. 103 as being unpatentable over Eling et al. (WO 01/30911, from the IDS dated 20 December 2022, hereinafter referred to as “Eling”) in view of Janoski et al. (US 5,253,461, hereinafter referred to as “Janoski”).
As to Claim 17: Eling teaches an asphalt composition comprising 1-8% by weight of polymeric MDI (i.e., an isocyanate composition) (Abstract).
Eling does not teach that the composition contains the recited plasticizers.
However, Janoski teaches that plasticizers can be added to isocyanate prepolymer and asphalt compositions and preferred plasticizers include diisodecyl phthalate (Col. 9, Lines 13-38) and further that the plasticizer can be present in an amount of 2 to 15 parts (Col 14, Lines 55-60). Janoski and Eling are analogous art in that they are from the same field of endeavor, namely asphalt compositions. At the time of filing, it would have been obvious to a person having ordinary skill in the art to use the plasticizer of Janoski in an amount within 0.1 to 8 parts because Janoski teaches that the plasticizer reduces the viscosity of the prepolymer and the asphalt which makes them somewhat easier to intermix (Col. 9, Lines 35-38).
As to Claim 18: Eling and Janoski render obvious the composition of claim 17 (supra). Eling further teaches that the polymeric MDI has a functionality of at least 2.5 (Abstract),
As to Claims 19 and 20: Eling and Janoski render obvious the composition of claim 17 (supra). Eling further teaches that the isocyanate is polymeric MDI (Abstract).
As to Claim 22: Eling and Janoski render obvious the composition of claim 20 (supra). Eling further teaches a preferable amount of the polymeric MDI is 2-5 parts by weight (Pg. 1, Lines 24-27).
As to Claims 23 and 24: Eling and Janoski render obvious the composition of claim 17 (supra). Janoski further teaches that the plasticizer can be diisodecyl phthalate (Col. 9, Lines 20-24).
As to Claim 25: Eling and Janoski render obvious the composition of claim 17 (supra). Janoski further teaches that the plasticizer can be diisodecyl phthalate (Col. 9, Lines 20-24) which is a structural isomer to bis(2-ethylhexyl) and would also have been obvious to a person having ordinary skill in the art since the diisodecyl phthalate is a preferred plasticizer.
As to Claim 26: Eling and Janoski renders obvious the composition of claim 17 (supra).
Eling does not teach that the plasticizer is present in an amount of 0.5 to 5 weight %.
However, However, Janoski teaches that the plasticizer can be present in an amount of 2 to 15 parts (Col 14, Lines 55-60). At the time of filing, it would have been obvious to a person having ordinary skill in the art to use the plasticizer of Janoski in an amount within 0.5 to 5 parts because Janoski teaches that the plasticizer reduces the viscosity of the prepolymer and the asphalt which makes them somewhat easier to intermix (Col. 9, Lines 35-38).
As to Claim 27: Eling and Janoski render obvious the composition of claim 17 (supra). Eling further teaches a preferable amount of the polymeric MDI is 2-5 parts by weight (Pg. 1, Lines 24-27).
Eling does not teach that the ratio of the isocyanate to the plasticizer in in the range of 80:1 to 1:80.
However, However, Janoski teaches that the plasticizer can be present in an amount of 2 to 15 parts (Col 14, Lines 55-60). At the time of filing, it would have been obvious to a person having ordinary skill in the art to use the plasticizer of Janoski in an amount the same amount as the isocyanate (i.e., 1:1) because Janoski teaches that the plasticizer reduces the viscosity of the prepolymer and the asphalt which makes them somewhat easier to intermix (Col. 9, Lines 35-38).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Eling et al. (WO 01/30911, from the IDS dated 20 December 2022, hereinafter referred to as “Eling”) in view of Janoski et al. (US 5,253,461, hereinafter referred to as “Janoski”) as evidenced by Dow (Dow Plastics, Papi27 polymeric MDI, Product information).
As to Claim 21: Eling and Janoski render obvious the composition of claim 21 (supra). Eling further teaches that the polymeric MDI has a functionality of 2.7 and a NCO content of about 30.6 (Pg. 4, Lines 30-35). Dow shows that a polymeric MDI with this functionality and NCO content has a viscosity of 150-222 cps.
Claims 28 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Eling et al. (WO 01/30911, from the IDS dated 20 December 2022, hereinafter referred to as “Eling”) in view of Janoski et al. (US 5,253,461, hereinafter referred to as “Janoski”).
As to Claim 28 and 29: Eling teaches an asphalt composition comprising 1-8% by weight of polymeric MDI (i.e., an isocyanate composition) (Abstract). Eling further teaches that the composition is made by heating the asphalt to 135°C, then adding the polymeric MDI and mixing at 135 °C for 30 min. Eling further teaches the final material can be tested by FTIR to determine completion of reaction, and that the reaction is performed in air (Pg. 4, Line 28 – Pg. 5, Line 10).
Eling does not teach that the mixture is mixed for longer than 2 hours.
However, Eling teaches that the mixture is mixed for 30 min and this could have been extended for longer to ensure additional mixing and dispersion and Eling says It can be performed for a sufficient time (Claim 5).
Eling does not teach that the composition contains the recited plasticizers.
However, Janoski teaches that plasticizers can be added to isocyanate prepolymer and asphalt compositions and preferred plasticizers include diisodecyl phthalate (Col. 9, Lines 13-38) and further that the plasticizer can be present in an amount of 2 to 15 parts (Col 14, Lines 55-60). Janoski and Eling are analogous art in that they are from the same field of endeavor, namely asphalt compositions. At the time of filing, it would have been obvious to a person having ordinary skill in the art to use the plasticizer of Janoski in an amount within 0.1 to 8 parts because Janoski teaches that the plasticizer reduces the viscosity of the prepolymer and the asphalt which makes them somewhat easier to intermix (Col. 9, Lines 35-38).
Claims 28 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Eling et al. (WO 01/30911, from the IDS dated 20 December 2022, hereinafter referred to as “Eling”) in view of Janoski et al. (US 5,253,461, hereinafter referred to as “Janoski”).
As to Claim 28: Eling teaches an asphalt composition comprising 1-8% by weight of polymeric MDI (i.e., an isocyanate composition) (Abstract). Eling further teaches that the composition can be used in an admixture with stone and used for surfacing roads (Pg. 4, Lines 5-15)
Eling does not teach that the composition contains the recited plasticizers.
However, Janoski teaches that plasticizers can be added to isocyanate prepolymer and asphalt compositions and preferred plasticizers include diisodecyl phthalate (Col. 9, Lines 13-38) and further that the plasticizer can be present in an amount of 2 to 15 parts (Col 14, Lines 55-60). Janoski and Eling are analogous art in that they are from the same field of endeavor, namely asphalt compositions. At the time of filing, it would have been obvious to a person having ordinary skill in the art to use the plasticizer of Janoski in an amount within 0.1 to 8 parts because Janoski teaches that the plasticizer reduces the viscosity of the prepolymer and the asphalt which makes them somewhat easier to intermix (Col. 9, Lines 35-38).
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over Eling et al. (WO 01/30911, from the IDS dated 20 December 2022, hereinafter referred to as “Eling”) in view of Janoski et al. (US 5,253,461, hereinafter referred to as “Janoski”) in further view of Kostas Avramidis (US 2016/0046810, hereinafter referred to as “Avramidis”).
As to Claim 29: Eling and Janoski render obvious the method of claim 28 (see above).
Eling does not teach that the granular material is reclaimed asphalt pavement.
However, Avramidis teaches that reclaimed asphalt pavement can be used as aggregate material [0053] for asphalt compositions for paving roads [0056]. Eling and Avramidis are analogous art in that they are from the same field of endeavor, namely asphalt compositions. At the time of filing, it would have been obvious to use the reclaimed asphalt pavement of Avramidis as the aggregate of Eling because Avramidis teaches this aggregate can be used in asphalt compositions for paving roads [0053-0056].
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW J OYER whose telephone number is (571)270-0347. The examiner can normally be reached 9AM-6PM EST M-F.
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, Mark Eashoo can be reached at (571)272-1197. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Andrew J. Oyer/ Primary Examiner, Art Unit 1767
Prosecution Insights