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 .
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 are 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.
With regard to claim 17, the phrase “for a period of time such that” defines the heat treatment step in terms of a result to be achieved rather than a definite process parameter. The claim does not specify the duration and is accordingly unclear.
With regard to claim 20, the phrase “ a quantity of inner material comprised within the asphalt” does not clearly identify what constitutes the volume of inert material. It is unclear what he recited 1-30% by volume is determined.
With regard to claim 21, the term "substantially" is often used in conjunction with another term to describe a particular characteristic of the claimed invention. It is a broad term. In re Nehrenberg, 280 F.2d 161, 126 USPQ 383 (CCPA 1960). The court held that the limitation "to substantially increase the efficiency of the compound as a copper extractant" was definite in view of the general guidelines contained in the specification. In re Mattison, 509 F.2d 563, 184 USPQ 484 (CCPA 1975). The court held that the limitation "which produces substantially equal E and H plane illumination patterns" was definite because one of ordinary skill in the art would know what was meant by "substantially equal." Andrew Corp. v. Gabriel Electronics, 847 F.2d 819, 6 USPQ2d 2010 (Fed. Cir. 1988).
With regard to claim 28, the claim depends from claim 16 which has been cancelled and thus the claim is unclear.
With regard to claim 32, the recitation of a ‘final heat treatment step” does not clearly specify whether the “final heat treatment” is a separate and distinct step from the previously recited heat treatment or whether it may encompass the same steps originally in claim 17. As such the recited “the final heat treatment” lacks antecedent basis since it is unclear whether it is an additional heating step.
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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 17-32 is/are rejected under 35 U.S.C. 103 as being unpatentable over WO2020/180208A1 in view of KR20200096940.
Claim 17 is directed to a method for producing asphalt comprising:
a heat treatment step, wherein first rubber granules deriving from an end-of-life tire granulation process are subjected to a temperature of between 80 and 300 C,
for a period of time such that second rubber granules are obtained with a density of between 1.0 and 1.5 g/cm3; and a mixing step wherein the second rubber granules are mixed with stone aggregate and bitumen to obtain asphalt.
KR20200096940 discloses crumb rubber obtained from end-of-life tires. This process uses reactive components involved in sulfur bonding. The crumb rubber is treated to form an interpenetrating elastomer network and is then used in asphalt rubber for paving applications. KR20200096940 further discloses asphalt-rubber compositions used in road construction applications. Asphalt paving compositions conventionally comprise bitumen and mineral aggregate and the treated granules are used in binder compositions for road construction. See abstract, page 3 lines 39-41, pages 4-5, page 6, line 21, page 7 line 30, page 9 lines 3-13, page 30, page 46 lines 11-17, and 54 line 31-45.
KR20200096940 does not explicitly disclose subjecting the rubber granules to a heat treatment at a temperature between 180°C and 300°C to obtain granules having a density between 1.0 and 1.5 g/cm3 as recited in claim 17.
However, WO2020/180208A1 elastomeric modifiers for petroleum bitumen obtained from reclaimed industrial rubber, which can be used for producing elastomer-bitumen binders, and further to elastomer-bitumen binders produced using said modifiers and intended for use primarily in road building and civil engineering for asphalt concrete road surfaces and for the construction of airfields. The present modifier is a granular reclaim comprised of industrial rubber crumb, preferably crumb from reinforced tires. The reference further discloses, a method of manufacturing asphalt comprising a heat treatment step in which rubber granules derived from end of life tires are subjected to a temperature of 170°C -230°C, and subsequently mixed with stone aggregate and bitumen to form asphalt. See page 1 lines 6-17 and page 3 line 42, page 4 lines 19-39, and specifically page 5 lines 4-22 of Machine Translation. The reference further discloses that the heat treatment modifies the rubber granules to be incorporated into the asphalt binders. The reference also teaches the preparation of elastomeric-bitumen binder using 5-25% modifier and the remainder bitumen. See page 1 lines 13-15 (abstract), page 2 lines 10-24. On page 7 lines 34-40, the reference shows the use of the binder in asphalt concrete production. Thus, WO2020/180208A1 discloses tire derived rubber granules, processing prior to binder formation, the mixing with bitumen and asphalt production.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to apply heat-treatment conditions disclosed in WO2020/180208A1 to the crumb rubber used in the asphalt system of KR20200096940 to further modify the internal structure of the rubber and enhance its compatibility and performance in asphalt paving compositions. WO2020/180208A1 teaches that mechanothermal devulcanization at 170°C -230°C alters the structure of the crumb rubber prior to incorporating it into asphalt binder. Moreover, since KR20200096940 also improves asphalt paving performance using treated crumb rubber, one of ordinary skill in the art would have been motivated to apply the devulcanization temperature conditions of WO2020/180208A1 to the crumb rubber used in KR20200096940 to achieve predicable improvements in the asphalt’s performance characteristics. Furthermore, adjusting heating conditions to achieve predictable physical properties, such as density within the range of 1.0 to 1.5g.cm3, would have been an obvious matter of routine optimization of a process variable.
Claim 18 is directed to the method of claim 17, wherein during the heat treatment step the first rubber granules are subjected to a temperature of between 100°C and 200°C, for a period of time such that the second rubber granules are obtained with a density of between 1.2 and 1.3 g/cm3.
As noted above in the discussion for claim 17, WO2020/180208A1 discloses a method of manufacturing asphalt comprising a heat treatment step in which rubber granules derived from end of life tires are subjected to a temperature of 170°C C-230°C, and subsequently mixed with stone aggregate and bitumen to form asphalt. See page 1 lines 6-17 and page 3 line 42, page 4 lines 19-39, and specifically page 5 lines 4-22 of Machine Translation.
KR2020-0096940A discloses that thermal treatment affects crosslink density and structure of vulcanized rubber and thus affects the bulk physical properties such as density and is the variable controlled by temperature and processing conditions. .
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to adjust the heat treatment temperature within the disclosed range to obtain rubber granules having density within 1.2-1.3 g/cm3 as a matter of routine optimization of a predictable material property. Where the prior art discloses a temperature range that overlaps or lies within the claimed range, a prima facie case of obviousness exists.
Claim 19 is directed to the method of claim 17, wherein the mixing step comprises a first mixing operation wherein the stone aggregate and the bitumen are mixed together at a temperature of between 150°C and 200°C, and a second mixing operation wherein the second rubber granules are added to the mixture from the first mixing operation.
WO2020/180208A1 discloses a method of manufacturing asphalt comprising a heat treatment step in which rubber granules derived from end of life tires are subjected to a temperature of 170C-230C, and subsequently mixed with stone aggregate and bitumen to form asphalt. See page 1 lines 6-17 and page 3 line 42, page 4 lines 19-39, and specifically page 5 lines 4-22 of Machine Translation.
The claimed temperature range of 150°C -200°C falls within conventional asphalt production temperatures. Performing mixing in sequential stages represents a known and obvious process variation to control dispersion and incorporating of modifiers.
Moreover, separating the mixing process into sequential operations, first combining aggregate and bitumen, followed by addition of rubber modifier, represents a routine and conventional asphalt process sequence. This type of staged mixing would have been an obvious process variation to ensure proper dispersion and workability of the modifier within the asphalt mixture.
Claim 20 is directed to the method of claim 17, wherein the second rubber granules constitute from 1 to 30% by volume of a quantity of inert material comprised within the asphalt.
KR2020-0096940A discloses incorporating treated crumb rubber into asphalt paving compositions used in road construction. WO2020/180208A1 discloses preparation of elastomeric -bitumen binder compositions including 5-25% rubber modifier with the remaining bitumen, page 1 lines 13-15 and further teaches the use of the modified binder in asphalt concrete production. See page 7 lines 34-40. Because WO2020/180208A1 teaches rubber modifier levels that fall within the claimed ranges, selecting an amount of rubber granules with the disclosed concentration range of KR2020-0096940A would have been an obvious routine choice.
Claim 21 is directed to the method of claim 17, wherein the first rubber granules have a substantially polyhedral conformation, wherein a ratio between a maximum size and a minimum size thereof is less than 2.
KR2020-0096940A discloses crumb rubber obtained form used tire granulation processes for incorporation into asphalt. WO2020/180208A1 similarly discloses rubber granules derived from tire granulation and thermomechanical processing prior to incorporation into bitumen. Controlling particle dimensions and uniformity through known granulation and sieving techniques is known in the art absent a showing of criticality associated with the claimed size ration would have been within the ordinary skill in the art.
Claim 22 is directed to the method of claim 17, wherein the first rubber granules have dimensions to pass through a sieve having meshes with dimensions of between 10 mm and 1.5 mm.
In addition to the above discussions, selecting sieve dimension within the claimed range for asphalt binder incorporation constitutes routine control of particle size appropriate for mixing and dispersion in asphalt process and would have been obvious to the skilled artisan since the recited range falls within conventional granulation and screening processes for crumb rubber used in asphalt paving compositions.
Claim 23 is directed to the method of claim 17, wherein the first rubber granules have dimensions to pass through a sieve having meshes with dimensions of between 2.0 mm and 6.0 mm.
In addition to the above discussions, selecting sieve dimension within the claimed range for asphalt binder incorporation constitutes routine control of particle size appropriate for mixing and dispersion in asphalt process and would have been obvious to the skilled artisan since the recited range falls within conventional granulation and screening processes for crumb rubber used in asphalt paving compositions.
Claim 24 is directed to the method of claim 17, comprising a preliminary thermal step preceding the heat treatment step, wherein rubber granules are subjected to a temperature of between 120 and 200°C for a period of time of between 15 and 30 hrs.
WO2020/180208A1 discloses a method of manufacturing asphalt comprising a heat treatment step in which rubber granules derived from end of life tires are subjected to a temperature of 170C-230C, and subsequently mixed with stone aggregate and bitumen to form asphalt. See page 1 lines 6-17 and page 3 line 42, page 4 lines 19-39, and specifically page 5 lines 4-22 of Machine Translation. The selection of treatment duration within conventional processing times to achieve desired medication falls within the ordinary skill in the art.
Claim 25 is directed to the method of claim 17, comprising a surface treatment step, subsequent to the heat treatment step and wherein the second rubber granules from the heat treatment step are subjected to a surface abrasion operation.
WO2020/180208A1 discloses thermomechanical processing of rubber crumb prior to incorporation into bitumen. Incorporating a surface abrasion step to enhance surface characteristics is a predicable step known in rubber processing techniques and would have been obvious to the skilled artisan.
Claim 26 is directed to the method of claim 25, comprising a final heat treatment step subsequent to the surface treatment step and preceding the mixing step, wherein during the final heat treatment step the rubber granules deriving from the surface treatment step are subjected to a temperature of between 80 and 300°C for a period of time to obtain rubber granules with a density of between 1.0 and 1.5 g/cm3.
WO2020/180208A1 discloses a method of manufacturing asphalt comprising a heat treatment step in which rubber granules derived from end of life tires are subjected to a temperature of 170C-230C, and subsequently mixed with stone aggregate and bitumen to form asphalt. See page 1 lines 6-17 and page 3 line 42, page 4 lines 19-39, and specifically page 5 lines 4-22 of Machine Translation. The selection of treatment duration within conventional processing times to achieve desired medication falls within the ordinary skill in the art.
Claim 27 is directed to the method of claim 26, wherein during the final heat treatment step the rubber granules deriving from the surface treatment step are subjected to a temperature of between 100 and 200°C for a period of time to obtain rubber granules with a density of between 1.2 and 1.3 g/cm3.
WO2020/180208A1 discloses a method of manufacturing asphalt comprising a heat treatment step in which rubber granules derived from end of life tires are subjected to a temperature of 170C-230C, and subsequently mixed with stone aggregate and bitumen to form asphalt. See page 1 lines 6-17 and page 3 line 42, page 4 lines 19-39, and specifically page 5 lines 4-22 of Machine Translation. The selection of treatment duration within conventional processing times to achieve desired medication falls within the ordinary skill in the art.
With regard to claim 28, see 35 USC 112 rejection above.
Claim 29 is directed to rubber granules and/or powder deriving from an end-of-life tire granulation process, which have dimensions to pass through a sieve having meshes with dimensions up to 10 mm and that are subjected during a heat treatment step to a temperature of between 80 and 300*C for a period of time to obtain rubber granules and/or powder with a density of between 1.0 and 1.5 g/cm3. Claim 29 is also a product-by-process claim. Accordingly, patentability is based on the product itself rather than on the recited process steps used to make it. See MP EP §2113. The claimed product must be patentably distinct from the prior art product, regardless of the process by which it is made.
Thus, KR20200096940 discloses crumb rubber obtained from end-of-life tires. This process uses reactive components involved in sulfur bonding. The crumb rubber is treated to form an interpenetrating elastomer network and is then used in asphalt rubber for paving applications. KR20200096940 further discloses asphalt-rubber compositions used in road construction applications. Asphalt paving compositions conventionally comprise bitumen and mineral aggregate. The treated granules are used in binder compositions for road construction. See abstract, page 3 lines 39-41, pages 4-5, page 6, line 21, page 7 line 30, page 9 lines 3-13, page 30, page 46 lines 11-17, and 54 line 31-45.
However, KR20200096940 does not explicitly disclose subjecting the rubber granules to a heat treatment at a temperature between 80C and 300C to obtain granules having a density between 1.0 and 1.5 g/cm3 as recited in claim 17.
WO2020/180208A1 discloses a method of manufacturing asphalt comprising a heat treatment step in which rubber granules derived from end of life tires are subjected to a temperature of 170C-230C, and subsequently mixed with stone aggregate and bitumen to form asphalt. See page 1 lines 6-17 and page 3 line 42, page 4 lines 19-39, and specifically page 5 lines 4-22 of Machine Translation. This temperature range falls within the claimed ranges.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to apply heat-treatment conditions disclosed in WO2020/180208A1 to the crumb rubber of KR20200096940 to improve compatibility and performance in asphalt paving compositions since both references are directed to modifying tier derived rubber for asphalt paving applications and WO2020/180208A1 expressly teaches that such heat treatment alters rubber structure prior to binder incorporation. Density is a predictable physical property influenced by heating conditions. Furthermore, adjusting heating conditions to achieve predictable physical properties, such as density within the range of 1.0 to 1.5g.cm3, would have been an obvious matter of routine optimization of a process variable. Importantly, the claimed density range does not reflect a structural distinction over the rubber granules of the combined prior art.
Claim 30 is directed to the rubber granules and/or powder of claim 29, further subjected to a preliminary thermal step, preceding the heat treatment step, and wherein the rubber granules and/or powder deriving from the granulation process are subjected to a temperature of between 120 and 200°C for a period of time of between 15 and 30 hr.
WO2020/180208A1 discloses a method of manufacturing asphalt comprising a heat treatment step in which rubber granules derived from end of life tires are subjected to a temperature of 170C-230C, and subsequently mixed with stone aggregate and bitumen to form asphalt. See page 1 lines 6-17 and page 3 line 42, page 4 lines 19-39, and specifically page 5 lines 4-22 of Machine Translation. The selection of treatment duration within conventional processing times to achieve desired medication falls within the ordinary skill in the art.
Claim 31 is directed to the rubber granules and/or powder of claim 29, further subjected to a surface treatment step, subsequent to the heat treatment step, and wherein the rubber granules and/or powder from the heat treatment step are subjected to a surface abrasion operation.
WO2020/180208A1 discloses thermomechanical processing of rubber crumb prior to incorporation into bitumen. Incorporating a surface abrasion step to enhance surface characteristics is a predicable step known in rubber processing techniques and would have been obvious to the skilled artisan.
Claim 32 is directed to the rubber granules and/or powder of claim 31, further subjected to a final heat treatment step subsequent to the surface treatment step, wherein during the final heat treatment step the rubber granules and/or powder deriving from the surface treatment step are subjected to a temperature of between 80 and 300 C for a period of time to obtain rubber granules and/or powder with a density of between 1.0 and 1.5 g/cm3.
As previously discussed, both references disclose heat treatment of vulcanized tire rubber within overlapping temperature ranges encompassing 180-300/c. applying additional heat treatment following mechanical processing and would have been obvious to the skilled artisan.
In conclusion, in view of the above, there appears to be no significant difference between the reference(s) and that which is claimed by applicant(s). Any differences not specifically mentioned appear to be conventional. Consequently, the claimed invention cannot be deemed as unobvious and accordingly is unpatentable.
Information Disclosure Statement
Note that any future and/or present information disclosure statements must comply with 37 CFR § 1.98(b), which requires a list of the publications to include: the author (if any), title, relevant pages of the publication, date and place of publication to be submitted for consideration by the Office.
Improper Claim Dependency
Prior to allowance, any dependent claims should be rechecked for proper dependency if independent claims are cancelled.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TERRESSA M BOYKIN whose telephone number is (571)272-1069. The examiner can normally be reached M-F 7-5:30.
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/Terressa Boykin/Primary Examiner, Art Unit 1765